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elure.

CASES DECIDED

ON THE

BRITISH NORTH AMERICA ACT. 1867

CASES DECIDED

ON THK

BRITISH NORTH AMERICA ACT, 1867,

THE PRIVY COUNCIL, THE SUPREME COURT OF
CANADA, AND THE PROVINCIAL COURTS.

COLLECTED AND EDITEJ) BY

JOHN R. CARTWRIGHT, OF OSGOODE HALL, ESQUIRE

Barnster.at.Law, an., Law Cirri to the Ler,i.'ative A.senUy of Ontario.

VOL. III.

PRINTED BY WARWICK & SONS. 20 Ind 28 FRONT STREET WE^

1887.

WEST.

Entered according to Act of the Parliament of Canada, in the year 1887, by JoHX
ROBISON Cabtwright, in the Office of the Minister of Agriculture.

7:11^8

TABLE OF CONTENTS.

PREtACK ....

Table of Casks Rkpohtkd in this Volume

Table of Casks Containki, in this and the Preckoino Volumks

Table of Casks Cited ...

Cases Rkportkd ...

''"" Xoll'o §^^^Tc7. ^'''''' '' ''■ ': ^^•-" -- po^^--^

Appendix II., Containing thk Old Constitutions of the Provinces
"^"^er" a' ^°''^^'^'^« ™« Constitution of the United States of
Table or Sections of the B. N. A. Act. 1867, Cited in this Volume
Digest of Cases in this and the Preceding two Volumes

PAGK.

vii.

ix.

xi.-xvii.

xviii.-xxiii.

1-408

409-444

445-582

583-599
601, 602
603-625

PREFACE.

The present volun e contains the reported cases in the Privy
Council, the Supreme Court of Canada, and in the Courts of the
Provinces of Ontario, Quebec, Nova Scotia and New Brunswick, in
continuation of those previously published.

The method of arrangement adopted in the former volumes has
been retained.

The head notes, with one or two exceptions have been revised or
re- written.

Where any part of a judgment is omitted the omission is marked
by asterisks or otheiwise, the matters omitted being such only as
do not relate to the constitutional points. Square brackets, thus [ ],
shew that the words placed within them are introduced by the
editor.

The numbers inserted in the margin refer to the pages of the
original reports.

All quotations and references have, as far as possible, been verified
and corrected.

As the old Constitutions of the Provinces now forming the
Dominion of Canada and the Constitution of the United States are
occasionally referred to in the discussions arising on the B. N. A.
Act, they have been printed at the end of this volume.

August, 1887.

TABLE OF CASES REPORTED

IN THIS VOLUME.

t 11 n ,, PAGE.

Apollo Candle Company,
Powell V 432

Attorney-General of Ontario
V. Me: . r I

Attorney-General of Quebec
V. Colonial Building and
Investment Association. . 118

Attorney-General for Quebec
0. Reed jqq

Bate, Mousseau v 341

Bell, Doyle v 297

British Columbia Towing
and Transportation Com-
pany, Se well v 320,%

Burah, Reg. v 499

Chapleau, Molson v 3^0

Clarke v. Union Fire Insur-
ance Company 335

Colonial Building and In-
vestment Association, At-
torney-General of Quebec
V ijg

Commercial Bank of Wind-
sor. Town of Windsor v.. 377

I'-..OE.

Davidson, Queddy River

Driving Boom CoTiip;i tiy v. 243
Doyle V. Bell 297

Gibson v. McDonald 319

Grand Trunk Railway Com'-

pany, Monkhouse v 289

Griffith V. Rioux 348

Hodge V. Reg 144

McDonald, Gibson v. 319

Mercer, Attorney-Generai of

Ontario v j

Molson V. Chapleau .....*' 360
Monkhouse v. Grand Trunk

Railway Company 289

Mousseau v. Bate 341

Murdoch v. Windsor and

Annapolis Railway Com-

Pa^y 368

TABLE OF CASES REPORTED IN THIS VOLUME.
P

T, , , _ PAGE.

I'attee, Reg. v 340,71

Peek V. Shields 266

Pillow, Ex parte 357

Poulin V. Corporation o{

Quebec 230

Powell V. Apollo Candle Com-
pany 432

Quebec (Corporation of),
Pdulin i> 230

Queddy River Driving Boom
Company v. Davidson . . 243

Reed, Attorney-General for

Quebec v *. 190

, Ward V 405

Reg. V. Burah [[[ 409

, Hodge V 144

V. Pattee 346,%

PAOE.

Rioux, Griffith v 348

Sewell V. British Columbia
Towing and Transporta-
tion Company S20,n

Shields, Peek v 266

The Thrasher Case 320, ti

Union Fire Insurance Com-
pany, Clarke v 335

Wallace Huestis Grey Stone

Company, Re 374

Ward V. Reed 405

Wetherell and Jones, Ee . . 315
Windsor (Town of) v. Com-
mercial Bank of Windsor. 377
Windsor and Annapolis Rail-
way, Re 3,s7

Windsor and Annapolis Rail-
way, Murdoch v 3(J8

TABLE

OF THE

CASES CONTAINED IN THIS AND THE PRECEDIN(i

TWO VOLUMES.

Amer, Reg. V. ...

Angers v. City of Montreal

Ai)ollo Cfuidlo Conipjuiy, Powell i\ .

Armstrong v. McCutchin

Attorney-! Jenenil r. International Bridge
Coni])any ....

Attorney-(ieneral i\ Niagara Falls inter-
national Bridge Co.

Attorney-General c. Moroer

Attorney-General for Quebec r. Queen
'nsurance Co. .....

Attorney-General of Quebec, Colonial
Building and Investment Associa-
tion !'. ......

Attorney-General of Quebec *•. Reed

Bate, Mousseau o. .
Bayley, Ganong i\ .
Beard v. Steele ■ . . . .

Belford, Hmiles v. . . . . .

Bt'lisle, L'UnionSt. Jacques de Montrealr.
Bell, Doyle v. .....

Bennett v. Pharmaceutical Association of

Quebec . ....

Bennett, Reg. e. . . '

Black, Dow v. .....

Blouin V. Coriwration of Quebec .

Boardman, Reg. v.

Bourgoin v. La Compagnie du Chemin de ,

Fer de Montreal, Ottawa et Occidental i
Bradshaw, Reg. v.

British Columbia Towing Co. v. Sewell .
Bronie (Municit.ality of), Cooey v. .
Burah, Reg. t>.

. 42 Q. B. 391 ,
24 L. C. Jurist, 269
10 App. Cas. 282
2 Pugsley, 381 .

> G Aj)p. Rep. 537

I 20 Grant, 34 .

8 App. Cas. 707.

I 3 App. Cas. 1090

> 9 App. Cas. 157.
10 App. Cas. 141

27 L. C. Jurist, 163
1 Pugsley & Burbidg
34 Q. B. 43

I App. Rep. 43G.
L. R. 6 P. C. 31

II App. Rep. 326

1 Dorion, 33G .

1 O. R. 445
L. R. G P. C. 272
7 Q. L. R. 18 .
30 Q. B. 553

i 5 App. Cas. 381

38 Q. B. 564 .
4 Canada Law Times, 63
21 L. C. Jurist, 182
3 App. Cas. 889.

324

111

I'AO E.

i. 722

ii. 336

iii. l32

ii. 494

ii. 559

i. 813

iii. 1

i. 117

iii. 118

iii. 1!»0

iii. 341

ii. 509

i. G83

i. 67G

i. G3

iii. 297

ii. 250

ii. 634

i. 95

ii. 3G8

i, 67G

i. 23;}

ii. 602
, 320, /(.

ii. 886
iii. 409

Xll.

TABLE OF CASES CONTAINED IN THIS

Canada Central Railway Co., Jones v. .
Chandler, Reg. v. .....

Chapleau, Molson v

Chauveau, Cotfe i'. ; . . . .
Church I'. Fenton

Citizens' Insurance Co. r. Parsons .

Clarke v. Union Fire Insurance Co.

Cleveland (Municipality of) v. Muni-
cipality of Melbourne and Brompton
Gore ......

College of Physicians and Surgeons of
Ontario, Reg. v. ....

Colonial Building and Investment Associa-
tion V, Attorney-General of Quebec

Colonial Building and Investment Associa-
tion, Loranger v. . . . ,

Commercial Bank of Windsor, Town of
Windsor v. . . .

Cooey V. Municipality of Brome

Coote, Reg. r. .

Cott^'s Case ....

Cote I'. Chauveau .

0. Watson

Credit Valley Railway Co. v. Great
Western Railway Co.

Crombie v. Jackson .

Gushing v. Dupuy .

)

46 Q. B. 250 .
1 Hannay, 556 .

6 Legal News, 222 .

7 Q. L. R. 258 .
28 C. P. 384 .

45 L. T. N. S. 721 ; 7 App,

Cas. 96
10 Pr. Rep. 313

4 Legal News, 277 .

[ 44 Q. B. 564 .
I 9 App. Cas. 157.
[ 5 Legal News, 116 .

i 3 Russell & Geldert, 420

21 L. C. Jurist, 182
L. R. 4 P. C. 599
20 L. C. Jurist, 210
7 Q. L. R. 258
3 Q. L. R. 157 .

[ 25 Grant, 507 .

34 Q. B. 575

5 App. Cas. 409

PAGE.

i. 777

ii. 421

iii. 360

ii. 311

■ 831

i. 265

iii. 335

ii. 241

i. 761

iii. 118

ii. 275

iii. 377

u. 385

i. 57

ii. 220

ii. 311

ii. 343

i. 822

i. 685

i. 252

Dansereau, Ex parte

Davidson, Queddy River Driving Boom Co, u

De Grosbois, Willett v. .

De St. Aubyn i'. Lafrance

De Veber, In re , . .

Diblee, Whittier v, .

Dobie V. The Temporalities Board

Dow V. Black ....

Doyle V. Bell ....

Dudman, Kinney v.

Duncan, Ex parte .

Dupuy, Cashing v. .

. 19 T.. C. .lurist, 210 .

ii.

165

m Co. V. 10 Can. S. C. R. 222.

iii.

243

. 17 L. C. Jurist, 293 .

■ ii.

332

. 8 Q. L. R. 190 .

ii.

392

. 21 N. Brunswick Rep. 401

. ii.

552

. 2 Pugsley, 243 .

. ii.

492

• 7 App. Caa. 136.

351

. L. R. 6 P. C. 272 .

. 11 App. Rep. 326 .

iii.

297

. 2 Russell & Chesley, 19

ii.

412

. 16 L. C. Jurist, 188 .

ii.

297

. 5 App. Cas. 409.

252

Ellis, Ex parte

European and North American Ry. Co. v.

Thomas

Evans i'. Hudon

1 Pugsley & Burbidge, 693 ii. 527

} 1 Pugsley, 42 . . . ii. 439

22 L. C. Jurist, 268 . . ii. 346

AND THE PRECEDING TWO VOLUMES.

Farewell, The
Fenton, Church v. .
Foley, Reg. v.
Frawley, Reg. v, .
Frederictoii (City of) v. Reg.

Ganong v. Bayley, ....
Gibson v. McDonald
Goodhue, lie • • . '.

Grainger, Separate School Trustees of

Belleville f. . . .
Grand Trunk Ry. Co., Monkhouse v
Great Western Ry. Co., Credit Vallev

Ry. Co. V. . •'

Green, Holman v. .
Griffith, Page v.

, Paige V.

, Pope V.

V. Rioux

7 Q. L. R. 380 .
28 C. P. 384
Stevens' Digest, 381
7 App. Rep. 246
3 Can. S. C. R. 505

• • •

xni.

PAGE.

. ii. 378
. i. 831
. ii. 653,w
. ii. 576
. ii. 27

1 Pugsley & Burbidge, 324

7 O. R. 401 . .
19 Grant, 366 .

[ 25 Grant, 570 .

8 App. Rep. 637
25 Grant, 507 .

6 Can. S. C. R, 707

17 L. C. Jurist, 302

18 L. C. Jurist, 119
16 L. C. Jurist, 169
6 Legal News, 211

ii. 509

iii. 319

i. 560

i. 816

iii. 28}>

i. 822

ii. 147

ii. 308

ii. 324

ii. 291

iii. 348

Hasiilton (City of), Harris v. .

Harris v. City of Hamilton

Hart V. Corporation of the County of

Missisquoi
Hazleton, Valentine r.
Hodge I'. Reg.
Holman v. Green
Holmes c. Temple
Horner, Reg. v.
Hudon, Evans v.

• 44 Q. B. 641 .

I 3 Q. L. R. 170 .

. Stevens' Digest, 1083

• 9 App. Cas. 117

. 6 Can. S. C. R. 707 .

• 8 Q. L. R. 351 .

. 2 Stephens' Digest, 460

. 22 L. C. Jurist, 268 .

i. 756

ii. 382

. 495, n
iii. 144
ii. 147
ii. 396
ii. 317
ii. 346

Intern ATioxAL
General v.

Bridge Co., Attorney

I 6 App. Rep.

537

11. 559

Jackson, Crombie v.
Johnston v. Poyntz . [
Jones V. Canada Central Ry. Co.

34 Q. B. 575 .

2 Russell & Geldert, 193

46 Q. B. 250 . .

1. 685

ii. 416

I- m

Keefe v. McLennan
King's (Justices of), Reg.
Kinney r. Dudnian .

2 RuBsell & Chesley, 5 . ii. 40<>
2 Pugsley, 535 . . . ,{. 499
2 Russell & Chesley, 19 . li 412

XIV.

TABLE OF CASES CONTAINED IN THIS

La Compagnie du Cheiain de Fer de
Mijutreal, Ottawa et Occidental,
Bourgom c. . . . . .

Lafrance, De St. Aubyn v. . . ' .

Lake, Reg. r. . . .

Landry, Tlieberge e. ....

Liinglois, Valin v. .

Lawrence, Reg. /•. .

Lenoir r. Ritchie .....

Leprohon r. City of Ottawa

Leveille, E.i- Fnrie . . . . .

Loranger r. Colonial- Building and In-
vestment Association

L'UninnSt. Jaciiuesde Montreal r. Belisle

McAlmon '■. Pine .....

McClanaghan c. St. Anns Mutual Build-
ing Society .....

McCutchin, Armstrong c ...

McDonald, tiibson c. . . . .

McDougall r. Montreal Wareliousing Co.

Macdougall v. UniiMi NaA'igation Co.

McGuii'e. Wilson c

McLennan, Keefe r.

McMillan. Reg. <•

I-. Southwest Boom Co. .

Maher c. Town of P(n'tland

Mallette r. City of Montreal

Melbourne and Brompton (iore (Muni-
cipality of). Municipality of Cleve-
land (■.....,,

Mercer, Attorney (General c. .

Merchants' Bank, Smith c. .

•MisHisciuoi (Corporation of the C<junty
of). Mart /•

Molir, Reg. r.

Molson c. Chapleau ...

Monkhou.se »•. Grand TrunV- Ry. Co.

Montreal (City ofi, Angers c. .

, Mallette i\.

Montreal, Ottawa et Occidental, Bourgohi r

.Montreal Warehousing Co., Royal Cana-
dian Ins. Co. )-. ....

, McDougall c.

Mousseau c Bate .....

Murdocli I'. Windsor & .\nnapolis Ry. Co.

5 Apj). Cas. 381

PAtiE.

8 Q. L. R. 190 .
43 Q. B. 515 .

2 App. Cas. 102.
5 Ap]>. Cas. 115
43 Q. B. 164 .

3 Can. S. C. R. 575 .
2 App. Rep. 622

2 Stephens' Digest, 445

> 5 Legal News, 1 Ki .
L. R. P. C. 31

233

. ii.

392

. ii.

610

. ii.

15«

742

488

592

. ii.

349

. ii.

27.-.

6:5

2 Pugsley, 44 .
j 24 L. C. Jurist, 102

2 Pugsley, .381 .

7 ( ). R. 401

3 Legal News, 64
21 L. C. .Jurist, 03
2 0. R. 118
2 Russell it Chesley, 5.

2 Pugsley, 110 .

1 Pugsley it' Buibidge 715
Times of July 18, 1874 .
24 L. O. Jurist, 203

( 4 Legal News, 277

8 App. Cas. 707.
28 (Jrant 029

I 3 Q. L. R. 170 .

7 Q. L. R. 183 .
Legal News, 222

8 Apj). Rep. 037
24 L. C. Jurist, 259
24 L. C. Jui'ist, 203

5 App. Cas. 381

► 3 Legal News, 155

3 Legal News, 04
27 L. C. Jurist, 153
Russell's Ecpiity Rep. 137

NiACJAKA Falls International Bridge Co,, ) on n i. nt
Attorney-General... . ^. ;} 20 Grant, 34 .

Noel c. Corporation of the County of ) , t^ ooo

Riclnnond . . . . . P ^""""' '^^ '

Normand c, St. Lawrence Navigation Co. 5 Q. L. R. 215 .

ii. 487

ii. 2X

ii. 494

iii. 319

ii. .300. n

ii. 228

ii. 665

ii. 40<1

ii. 489

ii. 542

ii. 480, *-

ii. 340

ii. 241

iii. 1

i. 828

ii. 382

ii. 257

iii. 300

iii. 289

ii. 335

ii. 340

i. 233

ii. 301

ii. 306, II

iii. 341

iii. 308

i. 813

ii. 240
ii. 231

AND THE PRECEDING TWO VOLUMES.

XV.

Okillia (Village of), Slaviu r.
O'Rourke, Reg. c. .
Ottawa (City of), Leprohon c,

Page c. Griffith
Paige >: Griffith
Papin, Ex parte

M (

||H Piirsons, The Citizens Insurance Co. v. . <

The Queen Insurance Co.

Pattee, Reg. c. . . ' .

Peek, Shields v. .... ,

Pharmaceutical Associati(jn of Quebec,

Bennett r. .....

Picton, The

Pillow, Ex parte .....

Pine, McAlmon c. . . . .

Poitras r. Corporation of Quebec

Pope r. Griffith .....

Portland (Town of), Mahei v. .

Pouliu r. Corporation of Quebec

Powell r. Apollo Candle Co.

Poyntz, .lohnston »•. ....

Prince Edward (License Conxinissioners

of) c. County of Prince Edward
Prittie, Reg. r.

PAGE.

36 Q. B. 159 .

i. 688

1 0. R. 464 .. .

ii. 644

2 App. Rep. 522

i. 592

17 L. C. Jurist, 302 .

ii. 308

18 L. C. Jurist, 119 .

ii. 324

15 L. C. Jurist, 334 .

ii. 320

16 L. C. Jurist, 319 .

ii. 322

45 L. T. N. S. 721 ; 7 App.

Cas. 90

i. 265

45 L. T. N. S. 721 ; 7 App.

Cas. 96

i. 265

5 Pr. Rep. ^92 .

iii. 346, /,

6 App. Rep. 639

iii. 266

IDorion, 336 .

ii. 250

4 Can. S. C. R. 648 .

. i. 557

27 L. 0. Jurist, 216 .

iii. 357

2 Pugsley, 44 .

. ii. 487

9 Revue Legale, 531 .

ii. 376, /-

16 L. C. Jurist, 169 .

. ii. 291

Times of July 18, 1874

ii. 486, n

9 Can. S. C. R. 185 .

. iii. 230

10 App. Cas. 282

. iii. 432

2 Russell & Geldert, 193

. ii. 416

26 Grant, 452 .

ii. 678

42 Q. B. 612 .

. ii. 606

(Quebec (Corporation of), Blouin r.

, Poitras r.

, Poulin *'.

Queddy River Driving Boom Co.

Davidson ....

Queen Insurance Co., Attorney-General

for Quebec r. .

Queen Insurance Co. c. Parsons

. 7 Q. L. R. 18 .

. 9 Revue Legale, 531 .

. 9 Can. S. C. R. 185 .

■• j 10 Can. S. C. R 222

J3 App. Cas. 1090

i 45L.T. N.S,721; 7 App.
\ Cas. 96

ii. 368

ii. 376, )b

iii. 230

iii. 243
, i. 117

i. 265

Reed, Attorney-General of Quebec i

-. .10 App. Cas. 141

. iii. 1!K)

, Ward f.

. 22 N. Brunswick

Rep. 279. iii. 405

Reg. V. Anier

. 42Q. B.391

. i. 722

i\ Bennett

. 1 0. R. 445

. ii. 634

('. Boardman

. .30Q. B.553 .

. i. 676

I'. Bradshaw

. 38 Q. B. 564

. ii. 602

>'. Burah

. 3 App. Cas. 889.

. iii. 409

r. Chandler

. 1 Hannay, 556 .

. ii, 421

XVI.

TABLE OF CASES CONTAINED IN THIS

1 I

PAGE.

Reg. V. City of Fredericton

. 3 Can, S. C. R. 605 .

ii. 27

V. College of Physicians and Surgeons \ 44 q B 564

of Ontario . . . . J ^' '

i. 761

V. Coote .

. L. R. 4P.C. 599

i. 67

V, Foley .

. Stevens' Digest, 381 .

. ii. 663, n

— — V. Frawley

. 7 App. Rep. 246

. ii. 676

, Hodge V.

. 9 App. Cas.117.

. iii. 144

V. Homer.

. 2 Stephens' Digest, 450

. ii. 317

— — V. Justices of King's.

, 2Pugsley, 535

. ii. 499

r. Lake

. 43 Q. B. 515 .

ii. 616

V. Lawrence

. 43Q. B. 164 .

. i. 742

— — V. McMillan

. 2Pug8ley, 110 .

ii. 489

■ V. Mohr

. 7 Q. L. B. 183 .

. ii. 257

V. O'Rourke

. 1 0. R. 464

ii. 644

V, Pattee

. 5 Pr. Rep. 292 .

iii. 346, n

■ V. Prittie

. 42 Q. B. 612 .

. ii. 616

■ V. Reno etal .

. 4 Pr. Rep. 281 .

i. 810

— V. Robertson .

. 6 Can. S. C. R. 52 .

. ii. 65

V. Roddy

. 41 Q. B. 291 .

i. 709

, Russell V.

j 46L.T. N.S.889; 7 App
• \ Cas. 829 .

ii. 12

, Severn v.

. 2 Can. S. C. R. 70 .

i. 414

Renaud, Ex parte .

. 1 Pugsley, 273 .

ii. 445

Reno et al., Reg. v.

. 4 Pr. Rep. 281 .

i. 810

Richmond (Corporation of the
Noel V. . . ,

C°""^y«f'hDorion,333 . .

* * ' )

ii. 246

Rioux, Griffith v. .

. 6 Legal News, 211 .

iii. 348

Ritchie, Lenoir v. .

. 3Can.S. C. R. 675 .

i. 488

Robertson, Reg. v. .

. 6 Can. S. C. R. 52 .

. ii. 05

Roddy, Reg. v.

. 41 Q. B. 291 .

i. 709

Ross V. Torrance

. 2 Legal News, 186 .

ii. 352

Royal Canadian Insurance Co.
Warehousing Co.

^'•^""^^^-^^j 3 Legal News, 155 .

ii. 361

Russell r. Reg. .

'546L. T. N. S.889; 7 App
• ) Cas. 829 .

ii. 12

St. Ann's Mutual Building Society, Mc-

Clanaghan v. .
St. Lawrence Navigation Co., Normand v.
Separate School Trustees of Belleville v.

Grainger ......

Severn r. Heg. . . . . .

Sewell r. British Columbia Towing Co. .

Shields, Peck ?>.

Slaviu V. Village of Orillia

Smiles r. Belford

Smith, Exports . . . , .

)'. The Merchants' Bank

Southwest Boom Co., McMillan v. .
Squier, Be ..... ,

Steele, Beard v

Suite, Corporation of Three Rivers v.

24 L. C. Jurist, 162 ,

. ii. 237

5 Q. L. R. 215

. ii. 231

25 Grant, 570 .

. i. 816

2 Can. S. C. R. 70 .

. i. 414

4 Canada Tiaw Times,

53 . iii. 320,)(,

6 App. Rep. 639

. iii. 266

36 Q. B. 159 .

. i. 688

1 App. Rep. 436

. i. 576

16 L. C. Jurist, 140 .

. ii. 330

28 Grant, 629 .

. i. 828

ir^

1 Pugsley & Burbidge

715 ii. 542

■'.v|

46 Q. B. 474

. i. 789

;>ra

34Q.B.43

. i. 683

5 Legal News, 330 .

. ii. 280

i-a^

iK-y

PAGE.

761

ii. 653,»i

ii.

576

iii

.144

ii.

317

ii.

499

ii.

616

742

ii.

489

ii.

267

ii.

644

iii. 346, n

ii.

616

810

ii.

709

ii.

414

ii.

445

810

ii.

246

iii.

348

488

ii.

(55

709

ii.

352

ii. 361

ii. 12

■.:-,■!

AND THE PRECEDING TWO VOLUMES.

Temple, Holme.s r. . 8 Q L Ii 'ihl

Temporalities Board, D.. bio ,-. . ." 7 App. "Cas." i3(;'

Iheberge r. J.andry . . . y App. Cas. 102

Thomas, European and North American / , ,, ,

Ry. Co. ('. . ( i I "galey, 42 .

TJirasher Case, The ...'*"
Tliree Rivers (Corporation of) r. Suite
Toronto Harbour Commissioners, lie
Torrance, Ross r. .

4 Canada Law Times, 53

5 Legal News, 330 .
28 Grant, 195 .
2 Le^al News, 186 .

Union Fire Insurance Co., Clarke r.
l-nkm Navigation Co., Macdougall t:

Valentine v. Hazleton
Valin ('. Langlois

Wallace Huestis Grey Stone Co. , Re.
Ward V. Reed . . .

Watson, Cotfe c

Western Counties Ry. Co. c. Windsor

Annapolis Ry. Co. .
Wetherell & Jones, ]{e
Whittier r. Diblee ..."
Willett V. De Grosbois .
Wilson c. McGuire ....
Windsor (Town of) v. Commercial Bank

Windsor .....
Windsor & Annapolis Ry. Co., Re.

— , Murdoch r.

, Western Counties Ry. c. .

Worms, Expitrtc ....

S:}

}

10 Pr. Rep. 313
21 L. C. Jurist, 63

Stevens' Digest, 1083.
5 App. Cas. 115.

Russell's Equity Rep. 461 ,
22 N. Brunswick Ken. 279

3 Q. L. R. 157 .

7 App. Cas. 178.

4 O. R. 713
2 Pugjley, 243 .
17 L. C. Jurist, 293 .

2 O. R. 118

3 Russell & Geldert, 420

4 Russell & Geldert, 312
Russell's Equity Rep. 137
7 App. Cas. 178.
22 L. (;. Jurist, 109 ,

XVll.

'A(iE.

396

351

11.

ii.

439

iii. 320, Jt

2S0

825

352

iii.

335

228

. ii. 495, u

158

. iii.

374

). iii.

405

. ii.

343

397

iii.

315

ii.

492

ii.

332

ii.

665

. iii.

377

. iii.

387

. iii.

368

397

ii.

315

i. 816

i. 414
ii. 320,/<,

iii. 266
i. 688
i. 576

ii. 330
i. 828

ii. 542
i. 789
i. 683

ii. 280

8«

i ^1

TABLE OF CASES CITED.

Alexanhra Case ....

Amer, R. r

Apollo Candle Co., I'owell r.
ArkellandTheCcjrporationot'St.Thoiuas,/)
Atchesoii V. Everitt ....
Attorney - General r. Black

— r. KiJhler

('. Middleniiss

c. Radloff

I'. Sillem

of Ontario r. Mtroer

/'. Niagara

Bridge Co
of Quebec r. Attorney-
General of Dominion .

2 H. & C. 431 .
42 U. C. Q. B. 391

10 A pp. Gas. 282
r.;38 U. (J. Q. B. 594

1 Cowp. 382
Stuart's Rep. 324

9 H. L. C. 654 .

19 T<. C. Jurist, 253

10 Ex. 84 .

2 H. i& C. 431 .

5 Can. S. C. R. 538

20 Grant, 34 .

P.\uE.

182
332
180
242
302
113
114
3f!l
174
182
301

342

2Q. L. R.230. 3,41,87,90,91,97

Bank r. Supervisors ....

of Commerce r. New York City

Tax Case .....

Barto I'. Himrod ....

Bateman's Trust, lit. n

Baxter, Bradley v

Belisle, L' Union St. Jacijues r.

Bennett, R. r, .....
Black, Attorney-General v.

, Dow r. .

Blackbird Creek Marsh Co., Wilson r.

Blake, Church r

Blmiin v. Quebec ....
Board of Wardens of Port of Philadeli)hia

Cooley V

Boardman, R. c

Bourgoin r. Montreal, etc., Ry. Co.
Bradley c. Baxter ....
BrodieandTheTownof Bowmanville, //(
Brooke, Mayor of Colchester i'.
Bunter v. Coke ....

Burah, R. r

Burgess r. Wheate ....

7 Wallace, 26 .

2 Black, 620

2 Wallace, 200 .

4 Seldon, 483

L. R. 15Eq.355

15 Barb. 122

L. R. 6 P. C. 31.

1 O. R. 445
Stuart's Rep. 324
L. R. 6 P. C. 272

2 Peters, 245 .

2 Q. L. R. 236 3, 41
7 Q. L. R. 18 .

\ 12 Howard, 299

30 U. C. Q. B. 553

5 App. Cas. 381 .

16 Barb. 122 .
38 U. C. Q. B. 580
7 Q. B. 339

1 Salkeld, 237 .

3 App. Cas. 889 146,

182, 188, 189. 252,
1 Eden, 227 ; 1 W. Bl.

379
380
380
419
114
419
139, 248, 307

392, 400
320
113

307, 399

249

87, 90, 91, 97

148, 234

264

174
400
419
242
248
20

148, 167, 170

839, 436, 440

123 3,19,91

93, 97, 98

XX.

lAliLE OF (jASKS CITKI).

Chamlkstox (Council of), Weston r.
Chau'lifere ( cold Mining (Jo. v. Desbarats
Churci? c. Blake
,' Middlemiss

Citizens' Ins. Co. v. Parsons

Coke, Bunter i'.

Cclcheater (Mayor, etc.), i\ Hio
Combermere, Dickson i\ .
Connnonalty of Sadlers
Commonwealth, National Bank

Parker v.

Connecticut River Lumber Co.,
Cooley t*. Board of Wardens
Craig i'. Kline .
Cramer, Thorne v.
Cross ?). De Valle
Curtis, Scripture r. .

Cushing r. Dupuy

)ke .

Harrigan

HAUK.

2 Pfters, 44U . 380

L. R. 6 P. C. 277 120, 129, 141

2 Q. L. R. 230 3, 41, H7, 90, 91, 97
21 L. C. Jurist, 319 . . 301
7 App. Cas. 90 120, 126, 127, 137

140, 143, 147, 157, IGO, 187, 222
252. 307, 340, 398.

1 Salkeld, 237 . . . 20

7 Q. B. 339 .. . 248

3 F. it: F. 527 . . 3C1

4 Hej). 541. ... 98
9 Wallace, 353 . . 3H1
() Barr, 507. . . . 419
129 Mass. 580 . . 249
12 Howard, 299 . 2(54

05 Penn. 399 . 2()4
15 Barb. 112 . 419

I Wallace, 1 ... 110

II U. C. C. P. 345 97

5 App. Cas. 409

247,2.-)2,270, 273
288

Dancey, McKenzie >■

De La Vega c. Vianna ....

De Valle, Cross c. . . . . .

Denison, United Stjites v. . . .

Desbarats, Chaudifsre Gold Mining Co. >:

Desdelens i\ Commissioners i>f Erie County

Dickson c. Combermere .

Dobie V. Temporalities Boai-d

Doe d. Hayne i'. Redfern .

Dow V. Black .

Doyle I). Falconer

Dupuy, Cushing v. .

Dyke v. VValford

1 B. it Ad. '284 .

1 Wallace, 1

2 Ch. Ch. 176 .
L. R. 5 P. C. 277
1() Peters, 443 .

3 F. & F. 527

7 App. Cas. 136 .
12 East, 90
L. R. 6 P. C. 272
L. R. 1 P. C. 328
j 5 App. Cas. 409 .

5 Moore, P. C. 434

334
280
112

316

120, 129, 141

380

361

149, 178

. 92, 98

307, 399

419

•247, 252, 270

277, 288

15, 59, 109

EASTON'.sCase

Elston, Board of Commissioners r. .
Erie County (Commissioners of), Desdelens !•.
Everitt, Atcheson v. ....

Eyre, Phillips v. .... .

12 A. it E. 645 .
2 American Rep. 327
16 Peters, 443 .
1 Cowp. 382
L. R. 6 Q. B. 20

147

381
380
302
339

Fai-coner, Doyle r. .
Feda Hossein's Petition
Fraser Case

L. R. 1 P. C. 328
Ind. L. R. 1 Calc. 431
1 Q. L. R. 177 .

419

417

TAItLK OF CASES CITKD.

X\1.

Fniwloy, Jl. i. .
Fruiloricton (City of), r. R.

PAOK.

7 Ai)p. llep. 240. . 147, Hi'i

•A Can. S. C. R. 505 148, 187, 2;il'

23:J, 252, 204, 352, 354

3 P. & B. 139 . . . 204

flARKKTT (". Roberts

Gibb, Original lliitlupool Collierios Co.
Gibbons r. Ogdoii ....
Gidley r. Palinorwtoii.

Gilbert, Jonas <•

Goodhue, lie

10 App. Rep. 050
5 Ch. D. 712
9 Wheaton, 1
3 15. it B. 275 .
5 Can. S. C. 11.350
19 Grant, 30() .

300
248
249
301
140
338

Hai.dimanI), Miicbeatli r. . . .IT. 11. 172

Harridan r. Coiniectieut River Lumber Co. 129 Mass. 580

Hart *•. County of Missisijuoi . .3 Q. L. R. 180

Hayne (Doe d.), c. Redfern ... 12 East, 90

Himrod, Barto v .4 Seldon, 483

IT 1 o I 9 App. Cas. 117

Hodge t'. R i

Hole i\ Sittingbourne & Sheerncss Ry. Co. H. & N. 488
HLghes, Plumb v 29 U. 0. C. P. 261

3(51
249

354

. 92, 98

419

189,305-307,339

430, 441

248

310

Jonah c. Gilbert

5 Can. S. C. H. 350

140

Keefe r.Maclennan
Kimball, County of Mobile
King's (Justices of), R. r.
Kline, Craig c. .
Kohler, Attorney-General <

. 2 R. & C. 5

148

. 12 Otto, 091

24i>

. 2 Pugsley, 535

148, 235, 237, 352

. 05 Penn. 399

204

. 9 H. L. C. 054

114

Landry, Th^erge v.
Langlois, Valin c

Lenoir i\ Ritchie ....

Leprohon r. Ottawa . . . . .

License Cases ......

L' Union St. Jacques de Montreal v. Belisle

. 2 App. Cas. 102
. / 5 App. Cas. 116

I 304,

. \ 3 Can. S. C. R. 1

. 3 Can. S. C. R. 575
. 2 App. Rep. 522
5 Howard, 504
L. R. P. C. 31

Macbeath v. Haldimaiul
Maclennan, Keefe v.

1 T. R. 172

2 R. & C. 5

3, 41, 49, 338

208,271,272,301

W5, 307, 318, 321

187, 280, 288

308,310

. 50, 322

187, 380

204

248,307,392,400

301

148

XX 11.

TAHF.K OF CASKS (."ITKI).

MAryland, Mc('ulluch /'. ,
Meiiros, 11. r. . . . , .
Mercor c, Atturiioy (»uiienil
Moichaiits' Bank, Smith c
MiddlomiHH, Attoniey-Goiieml r.

, Church I'. . . .

Middlotou V. Spicer . . ' .
Missicquoi (County of), Hart c
Mobile (County of), r. Kimball .

Mohr, R. ('

M(jutgoinory County (Board of Conimia

sioiiors of), Elstun c. .
Montreal, Ottawa it Occidental Ry. Co.

Bourgoin c. . . . .
Murdoch i\ Windsor it Annapolis Ry. Co

4 \Vheaton, 31fi .
14 R. it R. 10(J .
f» Can. S. C. R. 538
28 (Jrant, ti2!> .
]}> L. C. Jurist, 253
21 L. C. Jurist, 31!>
1 Brown, C. C. 201
3 Q. L. R. 170 .
12 Otto, (»91
7 Q. L. R. 183 .

• 2 American Rep. 327

■ 5 App. Cas. 381 .
Russell's E<iuity Rop,

■,■/_.

I'AOK.

380, 381, 385

'J:

416

jisk

361

271

^■r

361

. 19,97

354

249

140

381

400

137 . 387

M(;Claxa(}HAN c. St. Ann's Mutual
McCulloch r. Maryhuid
McGuire, V. Jsou r. .
McKcnzie *'. Dancey .
McMillan />. South- West Boom Co,

24 L. C. Jurist, 162
4 Wheaton, 31t) .
2 O. R. 118

i P. it B. 716 ."

139

38U, 381, 385

. 320-322

334
.243,262

National Bank i-. Commonwealth .
Now York City, Bank of (Jomnierco c
Niagara Bridge Co., Atty.-Gen. of Ontario c.

Niagara Election Case . . . .

Nugent, Weymouth c. . . . .

9 Wallace, 353 .
2 Black, 620
20 Grant, 34
29 U. C. C. P. 261

6 B. & S. 22 .

381
380
342
268, 272, 311
316-318
114

OfiDKN, Gibbons c .

. 9 Wheaton, 1 . . . 249

C igiual Hartlepool Collieries Co. /•

Gibb. oCh. D. 712 . 248

Orillia (Village of), Slavin <•.

. 36 U. C. Q. B. 159 . .148,242

; O'Rourke, R. r. . . .

. 1 0. U. 464 .. . 149
. 32 U. C. C. P. 402 . . 318

. 9 Wheaton, 738 . . 380

[ Osborn r. United States Bank .

t Ottawa (Corporation of), Leprohon

. 2 App. Rep. 522 . .187, 380

p '

Palmerstox, Gidley >:

. 3 B. & B. 275 . . 361

Parker c. Commonwealth .

. 6 Barr. 507 .. . 419

)

(7 App. Cas. 96 . .120, 126, 127
. \ 137, 140, 143, 147, 157, 160, 187

t Parsons, Citizens Ins. Co. v.

[ 222, 252, 307, 340, 398

it , Queen Ins. Co. r.

. 7 App. Cas. 96 . . 248

1 Peak V. Shields ....

. 8 Can. S. C. R. 579 . 308

■ Phillips V. Eyre.

. L. R. 6 Q. B. 20 339

-1

TABLE OF CASES (!1TED.

XXlll.

10, 381, 385
416
361
271
361
361
19,97
354
249
140

381

400

387

139

W, 381, 3«r)

. 320-322

334

.243,2(52

381
380
342
|()8,272, 311
31C-318
114

249
248

148, 242
149
318
380

187, 380

361

419

126, 127

r, 160, 187

r, 340, 398

248

308

339

Pluiiil) r. Hughes

Poulin »'. Corporation of Quebec

Powell r. Apollo Caiullo Co.

QuBBK(' (Corporation of), Blouin r.
, Poulin i:

29 \j. 0. C. P. 261

9 Can. S. C. R. IHo

10 App. CftH. 282

7 Q. L. R. 18 .
9 Can. S. C. R. 185

App. Cas. low .11>7.

Queen Ins. Co., Atty.-Gon. for Quebec *•. | 'gjQ 211 214 215, 220,
1'. Parsons . .7 App. Cas. 96 .

Radloff, Atty.-Gen. v.
Redfcrn, Doe d. Hayno <
Reay, R. v.
Reg. ('. Amer .

V. Bennett.

I'. Boardnian

V. Burah .

r. Frawloy.

Fredericton (City of) v.

Hodge r. .

r. .Justices of King's

r. Moares .

V. Mohr

t'. O'Rourke

c. Russell .

V. Reay
Severn v. .

w Taylor .

Ritchie, Lenoir o.
Roberts, Garrett v.

Russell c. R.

PA(iK.

316

.353,359
189

148
.353, 359
199, 203
221, 229

248

10 Ex. 84 . 174

12 East, 96. . . . 92, 98
7 Bomb. H. C. R. Cr. Ca. 77. 417
42 U. C. Q. B. 391 . . 332
1 O. R. 445 .. . 320
30 U. C. Q. B. 553 . . 174
3 App. Cas. 889 . .146, 148, 167
170, 182, 188, 189, 252, 339, 436, 440
7 App. Rep. 246 . . .147,163
3 Can. S. C. R. 506 . .148, 187
232, 233, 262, 352, 364

3 P. & B. 139

9 App. Ciis. 117

264
189, 305-307
339, 436, 441
148, 237, 362
416
140
149
318
6, 144, 146

2 ['ugsley, 535 .

14 R. iV R.

7 Q. L. R. 183 .

1 O. R. 464
32 U. C. C. P. 402
7 App. Cas. 829 .

147, 158, 160, 232, 233, 252, 292

307, 354, 436

7 Bomb. H. C. R. Cr. Ca. 77. 417

2 Can. S. C. R. 70 . .187,203
36 U. C. Q. B. 183 .115, 237, 242

3 Can. S. C. R. 575 . . 60, 322
10 App. Rep. 660 . 300

{ 7 App. Cas. 829 . . 6, 144, 146
{ 147, 158, 160, 232, 233, 252, 292
( 307, 364, 430

Sadleks, Commonalty of . . . .4 Rep. 54 b.

St^_ Ann's Mutual Building Society, | ^^ ^ ^ Jurist, 162

McClanaghan i\ ,
Sands' Case ....
Saunders i'. South-Eastern Railway
Scripture v. Curtis
Severn v. R. .
Sillem, Atty.-Gen. i".

Hardres, 488 .
5 Q. B. D. 462 .
11 U. 0. C. P. 346
2 Can. S. C. R. 70
2 H. & C. 431 .

98
139

98
147

187, 203

182

XXIV.

TABLE OF CASES CITED.

Sittingbourno & Slieeniess Ity. Co., Hole i\

Slaviu r. Orillia.

Smith I'. Merchants' Bunk.

, £.•• parte

Sonth-Easturn Ry., Saunders r.
South-West Boom Co., McMillan <
Spicer, MicUUeton r. .
Sijuier, lie ....

State of Pennsylvania >: Wheeling, etc.
Bridge Company .

Suite, Corporation of Three Rivers v

Supervisors, Bank r. .

(5 H. ,t N. 488 .
36 U. C. Q. B. 159
28 Grant, <)29 .
16 L. C. Jurist, 140
5 Q. B. D. 462 .
1 P. & B. 715 .
1 Brown C. C. 201
46 U. C. Q. B. 474

13 Howard, 518 .

5 L. N. 330

7 Wallace, 26 .

I'AGE.

248
148, 242, 249
271
315
147
243, 262
19, 97
322

249, 257

148, 220, 223

351, 353. 359

379

Tayloi;, R. r

Temporalities Board, Dobie v. .
Thebergo r. Landry .
Tliorne v. Cramer
Thrasher Case ....

Tluee Riv3rs (Corporation of) v. Suite

36 U. C. Q. B. 183
7 App. Cas. 136
2 App. Cas. 102
15 Barb. 112
4 C. L. T. 53
( 5 L. N. 330

115, 237, 242
.149,178

3, 41, 49, 338
419
320

148, 220, 223

351, 353, 359

United Statks r. Denison
United >States Bank, Osborn
Unwin '■. Wi)lseley .

2 Ch. Ch. 176
9 Wheaton, 738
1 T. H. 674

316
380
361

Valin v. Langlois

Vianna, De La Vega r.

3 Can. S. C. R. 1 .187, 280, 288

308, 316

5 App. Cas. 115 . .268, 271, 272

301, 304, 305, 307, 318, 321

1 B. & A<1. 284 . . 282

Walforp, Dyke r. .
Walker, Atty.-Gcn. ,.
Wardens (Board of), Cooley c. .
WestoTi r. Council oi' Charleston
Weymouth c. Nugent

Wheate, Burgess v

Wheo'<ing & Belmont Bridge Co., State

Pennsylvania r. . . .
Wilson r. Blackbird Creek Marsh Co.

■ (". McGuire ....

Windsor & Anni'.polis Ry., Be .

, Murdoch i'.

Wolseley, Unwin r. .

5 Moore P. C. 434
25 (hant, 233
12 Howard, 299 .
2 Peters, 449

6 B. i^ S. 22 .
1 Eden, 227 ; 1 W. Bl. 123

^^ 1 13 Howard, 518 .

2 Peters. 245 .
2 O. R. 118
4R. iVO.312 .
Russell's Equity Rep. 137
1 T. R. 674

16, 59, 109

264

380

114

3, 19

91, 93, 97, 98

.249, 267

249
. 320-322
368
387
3til

;i-

PAGE.

248

,148, 242, 24}>
27 J
315
147
.243, 262
. 1!>, 97
322

.249,257

.148, 220, 223
351, 353. 359
379

CASES DECIDED

ON THE

I BRITISH NORTH AMERICA ACT, 1867.

.115, 237, 242

.149,178

.3, 41, 49, 338

419

320

.148, 220, 223

351, 353, 359

316
380
361

.187, 280, 288

308, 316

.268, 271, 272

3, 307, 318, 321

282

15, 59, 109

2(>4

380

114

^1. 123 . 3, 19
91, 93, 97, 98

.249, 257

249

. .320-322

368

137 . 387

361

PRIVY COUNCIL.

The Attokxev-GeiVeral of Ontario Inforviant ; .j. c *

AN11 — .—

Andrew F. Meucer Defendant. Ju'.", ■'>, <h is.

0)1 Appeal ff>m flu- Sxpirme Cuiid of Canada.

[^Reported 8 App. Cas. 707.1

B. N. A. Ad., ss. 103, 100— Escheats — Provincial revenues — RuyaHies.

Lands in the Province of Ontario osc!ieated to the Crown for defect
of heirs belong to the Province and not to the Dominion.

At the date of passing the B. N. A. Act the revenue arising from all
escheats to the Crown within the then Province of Canada was
subject to the dispo.^al and apj^i'^^pi'hxtion of the Canadian Legis-
lature, and not of the Crown. Although sect. 102 of the Act
vested in the Dominion tlie general public revenues, as then
o.xisting of the Provinces ; yet by sect. 109 the casual revenue
arising from lands escheated to the Crown after the Union was
reserved to the Provinces — the words " lands, mines, minerals
and royalties " therein including, according to their true con-
strnction, royalties in respect of lands such as escheats.

Appeal from an order of the Supreme Court of Canada
(Nov. 14th, 1881), (1), reversing an order of the Court of

*P)rsent:— The Lord Chancei.lok (E.vki. ok Sklboknk), Sik Baknes
Peacock, Snt Moxtacuk E. Smith, Sik Robeut P. Colliku, Sat RicHARiy
Couch, and Sat Authlu Hobholsk.

(1) 5 Can. S. C. R., 53» ; po.-<l, p. IG.

V,r^

1883

Attokney-
Gknehal

Merceh.
Statement.

PRIVY COUNCIL.

[768] Appeal for Ontario (March 27th, 1880,) (1), which
unanimously affirmed an order of one of the judges of the
Court of Chancery (January 7th, 1879), (2).

On the 28th of September, 1878, the appellant filed an
information on behalf of the Crown to recover from the
respondent and others possession of a certain piece of land
in the city of Toronto, in the Province of Ontario, being
part of the real estate of Andrew F. Mercer, who died
intestate on the 13th of June, 1871, and without leaving
any heirs or next of kin. The respondent demurred
thereto for want of equity. The first Court held in
favour of the appellant that the land had escheated to the
Crown for the benefit of the Province, and this judgment
was affirmed by the Court of Appeal.

The Dominion Government appealed in the name of
the respondent, and it was agreed between the two Gov-
ernments that the appeal should be limited to the ques-
tion whether the Government of Canada or that of On-
tario was entitled to lands situate in the Province of
Ontario and escheated to the Crown for want of heirs.

The Sui)reme Court, by a majority (Fournier, Henry,
Tasciioieau and Gwynne, JJ., Ritchie, C. J., and Strong, J.,
dissenting), reversed the judgments of the Courts below,
and dismissed the information. The reasons stated shortly
were that escheat is not a reversionary right but a fiscal
prerogative; that the feudal system has never existed in
Canada ; that the privileges of the Provinces were sur-
rendered as a preliminary to the Confederation effected
by the B. N. A. Act ; that by that Act all duties and
revermes were transferred to the Dominion and to bo
appropriated to the public service of Canada; and that
the Act does not confer on the Government or Legislature
of Ontario any right to receive or dispose of the revenue
arisinff from escheated estates situate in the Province.

(1) G Api). Rnp., 570, post.

(2) 'JGCraiit, 2»i, /m<.

PRIVY COUNCIL.

Davey, Q.C., and Moiuat, Q.C. (Attorney-General of On-
tario), with them, Cart^vright, of the Canadian bar, and
Raleigh, for the appellant : —

Lands in the Province of Ontario are held in free and
common socage. Reference was made to 31 Geo. III. c. 31,
ss. 43, 44. Escheat is a reversionary right incident to
such tenure. Such lands belonged to Her Majesty for the
[769] benefit of the Province before they were granted,
and must be taken to revert to the Crown for the benefit
of the Province on escheat for want of heirs. The Lieu-
tenant-Governor of the Province, see B. N. A. Act, sects.
72, 7u, acts in the Queen's name, and therefore represerts
the Queen, notwithstanding that he is appointed by the
Governor-General of the Dorairiion. See also Theherge v.
Landry (1). For an outline of the legislation shewing
how public lands have been dealt with in Canada gener-
ally,and how the title thereto has been gradually transferred
to the Province : see 1 Anne, c. 1, especially s. 8 ; 39 and
40 Geo. III. c. 88; 47 Geo. III. c. 24 ; 1 William IV. c.
25 ; 1 & 2 Vict. c. 2. See also the Colonial legislation,
viz.: 7 William IV. (Upper Canada), c. 118, and after the
Imperial Statute, 3 ife 4 Vict. c. 35, for the union of the
two Canadas, especially sects. 50, 01, 54. Reference v/as
made to 4 & 5 Vict. c. 100 (Canada), and 12 Vict. c. 31,
amending it; 9 Vict. c. 114 (Canada), in substance a re-
enactment by the Provincial Legislature of the provisions
of the Act of Union (3 & 4 Vict. c. 35), confirmed by 10
& 11 Vict. c. 71, and to 15 & 10 Vict.c. 39 (Imperial).

The primary question is whether escheats fall with-
in sect. 102 or sect. 109 of the B. N. A. Act. Escheated
lands are within sect. 109. The right by escheat is a
^s of reversion. See /

«P'

'gess

(2),

Chitty on the Prerogatives of the (
(Sir Montague E. Smith.

pp.

230, 233.

own,
Blackstone puts it under the

1883
Attok.ney-

(iKNKHAL

Mkkcek.

Al{aU.MENT.

(1) 2 App. CnH. 102; <intf, vol. 2, p. 1. (2) 1 Edt-n. 227 ; 1 W. HI. 123.

t r.

'i 1

|!'

■ (

4 PRIVY COUNCIL.

1883 head of purchase. Sir Richard Couch referred to sect.

Attorney- ^*^7 of the Civil Code of Lower Canada.) Such right, or
Gknkuai. inchoate right, or possibility of a right is an interest of
Mkkcek. ^;jjg Crown in land within sect. 109. The other side say

AudUMKNT. tiiat the right by escheat is a right to I'evenue within sect.
102, which has not been transferred to the Province.
There is no interpretation of " revenues " in the Act. But
in sect. 101) the word "royalties" covers escheats. If
used in a narrow sense the word would be supei'iluous,
bein<>- included in "mines." And as refjards the word
" lands," all lands ungranted at the time of the Union be-
longed to the Province, and the right to take by escheat
is an interest in land which belongs to the same owner
who ■would have had the power to grant. Escheats would
also come under the head of " property and civil rights."
[770] See sect. 92, sub- sect. 13. When a subject is assigned
to the Province, any rev^enue derived from thence is also
assigned. Reference was made to Cliurch v. Blake (1);
Chitty on Prerogatives, p. 81. The revenues subject to
the Dominion under the B. N. A. Act are such as are
regularly appropriated to the public service, not those
wliich are subject to executive control, and grantable by
Her Majesty ex speciali gratia, among which are to be
reckoned the revenues arising from escheated estates.
See 22 Vict. c. Ui, ss. 1, 12 and 15 (Con. Stat. Canada^

The Solicitor-General (Sir F. riei-schell), and Lash,
Q.C, of the Canadian bar (Jeiine with them), for the
respondent : —

The appellant has failed to shew affirmatively that
escheats in the Province belonged to it. It is immaterial
whether escheat is a matter of reversion or not : it exists
jure corome. The law does not recognise a reversion on
a grant in fee-simple, but a right or prerogative of the

(1) 2 (Quebec Law Rep. 23f(, post, sub. noiii. Attorne;/-(h'ncral of Quebec v.
Attornri/'Weneral of the DuvUnion.

('«•■>.

PRTVY COUNCIL.

Quebec V.

Crown under wliich lands fall to the Crown under certain
circumstances. Reference was made to 31 Geo. III. c. 31,
s. 4;^», and 2 Blackstone, p. 89. That right never belonged
to the Province, and therefore is unaffected by sect. 109
of the B. N. A. Act. The fruits of escheats were always
a part of the royal revenue, and in the various statutes
which deal with this question escheated binds are always
treated as revenue. Those statutes deal with revenue
and not with reversionary or prerogative rights. See 1
Anne, c.l, s. 5 ; 39 and 40 Geo. III. c. 88 ; 59 Geo. III.
c. 94 ; 10 Geo. IV. c. 50, s. 12G ; 1 Wm. IV. c. 25, s. 12 ;
3 &; 4 Vicfc. c. 35, s. 54; 9 Vicfc. c. 114 (Canada), con-
firmed by 10 & 11 Vict. c. 71; 4 & 5 Vict. c. 100
(Canada), and 12 Vict. c. 31 (Canada). These lust two
Acts dealt with public lands, including those which had
escheated. " Casual revenues" must include revenues fnmi
escheats. See 15 and 10 Vict. c. 39, which ratifies the
provisions of the two Colonial Acts; for the latter
assumed to legislate in regard to lands which might
escheat, the only power to do so resulting from the power
to deal with casual revenues as given by the Act of Union
3 & 4 Vict. c. 35, s. 54 ; while Parliament gives a legis-
lative construction to the Act which gives such power.
Legislation, therefore, dealt with the fruits of escheat
[771] as revenue, and not as an interest in lands ; and the
Dominion Parliament had the power of appropriation
over such revenue. The result of the B. N. A. Act was to
create certain provinces with certain constitutional rights,
new legislatures and new executives. Previously the
Lieutenant-Governor of each Province directly represent-
ed the Queen. Under the Act the Queen is part of the
Dominion Parliament (sect. 17), not of the Ontario Legis-
lature (sect. 69). The Lieutenant-Governor does not now
represent the Queen except where the Act so directs.
Reference was made to sects. 92, 109, 117. Russell v.

18H3
— /— '

Attoiisky-
Gknkkal

Mkhceii.

AlKilMENT.

PRIVY COUNCIL.

1S83

Attounky-
Genkral

Meuckr.
Aroumknt.

Itl

The Queen (1). The word " lands " does not include
escheats after the Act, it includes lands ungranted and
lands escheated before the Act. The word " royalties " in
sect. 109 is not wide enough to include escheats ; and is
not a word which would be used for that purpose. Sect.
117 only refers to property actually in use for public pur-
poses. Inasmuch as the fruits of escheats are not expressly
given to the several Provinces, they belong to the Do-
minion.

Davey, Q.C., replied.

The judgment of their Lordships was delivered by

The Lord Chancellor (Earl of Selbome) : —

The question to be determined in this case is, whether
lands in the Province of Ontario, escheated to the Crown
for defect of heirs, " belong " (in the sense in which the
verb is used in the B. N. A. Act, 18G7), to the Province of
Ontario or to the Dominion of Canada.

By the Imperial Statute 31 Geo. III. c. 31, s. 43, it
was provided that all lands which should be thereafter
granted, within the Province of Upper Canada (now On-
tario), should be granted in free and common socage, in
like manner as lands were then holden in free and com-
mon socage in Enfjland. The argument before their
Lordships, on both sides, proceeded upon the assumption
that the lands now in question were so holden.

All land in England, in the hands of any subject was
holden of some lord by some kind of service, and was
[772] deemed in law to have been originally derived from
the Crown, "and therefore the King was Sovereign Lord,
or lord paramount, either mediate or immediate, of all
and every parcel of land within "the realm" (Co. Litt.
G5a). The King had "dominium directum," the subject

(1) 7 App. Cas. 829 ; ante, vol. 2, p. 12.

PRIVY COUNCIL,

include

ited and

ilties " in

s ; and is

56. Sect.

iblic pur-

^xpressly

the Do-

I by

whether
le Crown
^hich the
ovince of

s. 43, it
lereafter
now On-
ocage, in
md com-
tre their

umption

ect was
ind was

ed from
^n Lord,
3, of all

.^0. Litt.

■siiliject

"dominium utile" {Ibid. la). The word "tenure" signi- 1883
fied this relation of tenant to loi"d. Free or common attoknky.
socage was one of the ancient modes of tenure (" A man Genekal
may hold of his lord by fealty only, and such tenure is Meucer.
tenure in socage," Litt. sect. 118), which, by the Statute Jlocment.
12 Car. II. c. 24, was substituted throughout England for
the former tenures by knight-service and by socage in
capite of the King, and relieved from various feudal bur-
dens. Some, however, of the former incidents were
expressly preserved by that statute, and others (escheat
being one of them), though not expressly mentioned, were
not taken away.

" Escheat is a word of art, and signifieth properly when
by accident the lands fall to the lord of whom they are
holden, in which case we say the fee is escheated." (Co.,
Litt. 13a). Elsewhere (Ibid. 92b), it is called "a casual
profit," as happening to the lord "by chance and unlooked
for." The writ of escheat, when the tenant died without
heirs, was in this form : — " The King to the Sheriff, &c.
Command A., &c., that he render to B. ten acres of land,
with the appurtenances, in N., which C. held of him, and
which ought to revert to him the said B, as his escheat,
for that the said C. died without heirs " (F. N. B., 144 F.)
If tiiere was a mesne lord, the escheat was to him ; if not,
to the King.

Fiom the use of the word "revert," in the writ of
escheat, is manifestly derived the language of some
authorities which speak of escheat as a species of " rever-
sion." There cannot, in the usual and proper sense of the
term, be a reversion expectant upon an estate in fee-
simple. What is meant is that, when there is no longer
any tenant, the land returns, by reason of tenure, to the
lord by whom, or by whose predecessors in title, the tenure
Was created. Other writers speak of the lord as taking
it by way of succession or inheritance, as if from the

1883

Attornkt-
Genekal

Meucer.
Judgment.

PRIVY COUiS'CIL.

tenant, which is certainl}' not accurate. The tenant's estate
(subject to any charges upon it which he may have created)
has come to an end, and the lord is in by his own right.

[773] The profits and the proceeds of sales, of lands
escheated to the Crown, were in England part of the
casual hereditary revenues of the Crown, and (subject to
those powers of disposition which were reserved to the
Sovereign by the Restraining and Civil List Acts) they
were among the hereditary revenues placed at the dis-
posal of Parliament by the Civil List Acts passed at the
beginning of the present and the last preceding reign.
Those Acts extended, expressly, to all such casual revenues,
arising in any of the colonies or foreign possession.^ of the
Crown. But the right of the several Colonial Legislatures
to appropriate and deal with them, within their respective
territorial limits, was recognised by the Imperial Statute
15 & IG Vict. c. 39, and by an earlier Imperial Statute
(10 & 11 Vict. c. 71), confirming the Canada Civil List
Act, pas.sed in 1846 after the union of Upper and Lower
Canada, by which Act the provision made by the Colo-
nial Legislature for the charges of the Royal Government
in Canada was accepted and taken, instead of " all terri-
torial and other revenues," then at the disposal of the
Crown, arising in that Province ; over which (as to three
fifths permanently, and as to two-fifths during the life of
the Queen, and for five years afterwards), the Legislature
of the Province was to have full power of appropriation.
It may be remarked, that the Civil List Acts of the Pro-
vince of Canada contained no reservation of escheats,
similar to sect. 12 of each of the Imperial Civil List Acts
above referred to. It must have been purposely omitted,
in order that escheats might be dealt with by the Gov-
ernment or Legislature of Canada, and not by the Crown,
in whose disposition they must have remained if they had
not been in that of the United Province of Canada.

iWlli!

PRIVY COUNCIL,

-It

When, therefore, the " British North America Act " of
1867 passed, the revenue arising from all escheats to the
Crown, within the then Province of Canada, was subject
to the disposal and appropriation of the Canadian Legis-
lature.

That Act united into one "Dominion," under the name
of "Canada," the former Provinces of Canada (which is
subdivided into the two new Provinces of Ontario and
Quebec, corresponding with what had been before 1840
Ui)per anil Lower Canada), Nova Scotia and New Bruns-
[774] wick. It established a Dominion Government and
Legislature and Provincial Governments and Legisl.atures,
making such a division and apportionment between them
of powers, responsibilities, and rights as was thought
expedient. In particular, it imposed upon the Dominion
the charge of the general public debts of the several pre-
existing Provinces, and vested in the Dominion (subject
to exceptions, on which the present question mainly
turns), the general publ'c revenues, as then existing, oi"
those Provinces. This was done by sect. 102 of the Act,
which is in these words: — "All duties and revenues, over
which the respective Legislatures of Canada, Nova Scotia,
and New Brunswick, before and at the Union, had and
have power of appropriation, except such portions thereof
as are by this Act reserved to the respective Legislatures
of the Provinces, or are raised by them in accordance
with the special powers conferred upon them by this Act,
shall form one Consolidated Revenue Fund, to be appro-
priated for the public service of Canada, in the manner,
and subject to the charges, in this Act provided."

If there had been nothing in the Act leading to a con-
trary conclusion, their Lordships might have found it
difficult to hold that the word " revenues," in this section
did not include territorial as well as other revenues ; or
that a title in the Dominion to the revenues arising froia

1S83

AXTOltNKY-

Genkral

Mercek.

JUilCMENT.

I'lJIVY COUNCIL.

1883

Attoknky-
Gknkuai,

r.
Meuckh,

■Judgment.

public lands did not carry with it a right of disposal and
appropriation over the lands themselves. Unless, there-
fore, the casual revenue, arising from lands escheated to
the Crown after the Union, is excepted and reserved to
the Provincial Legislatures, within the meaning of this
section, it would seem to follow that it belongs to the
Consolidated Revenue Fund of the Dominion. If it is so
excepted and reserved, it falls within sect. 12G of the
Act, which provides that "such portions of the duties
and revenues over which the respective Legislatures of
Canada, Nova Scotia and New Brunswick had before the
Union power of appropriation, as are by this Act reserved
to the respective Governments or Legislatures of the Pro-
vinces, and all duties and revenues raised by them in
accordance with the special powers conferi'ed upon them
by this Act, shall, in each Province, form one Consolidated
Revenue Fund, to be appropriated for the public service
of the Province."

[775] Their Lordships, for the reasons above stated,
assume the burden of proving that escheats, subsequent
to the Union, are vvithin the sources of revenue excepted
and reserved to the Provinces, to rest upon the Provinces.
But, if all ordinary territorial revenues arising vvithin the
Provinces are so excepted and reserved, it is not a priori
probable that this particular kind of casual territorial
i-evenue (not being expressly provided for) would have
been, unless by accident and oversight, transferred to the
Dominion. The words of the statute must receive their
proper construction, whatever that may be ; but, if this
is doubtful, the more consistent and probable construction
ought, in their Lordships' opinion, to be preferred. And
it is a circumstance not without weight in the same direc-
tion, that, while "duties and revenues" only are appro-
priated to the Dominion, the public property itself, by
which territorial revenues are produced (as distinct from

■■I

■A

PRIVY COUNCIL.

posal and
?.ss, there-
;heated to
!served to
g of this
^8 to the
If it is so
!6 of the
he duties
atures of
)efore the
I reserved
' the Pro-
them in
pon them
isolidated
ic service

stated,

bsequent

excepted

rovinces.

ithin the

a priori

rritorial

Id have

d to the

ve their

, if this

truction

I. And

le direc-

appro-
;self, by
ct from

1883

Attohnet-

(iKNKHAI,

;*
'H

the revenues arising from it), is found to be appropriated
to tlie rrovinces.

The words of exception in sect. 102 refer to revenues j,

of. two kinds : (1) such portions of the pre-existing, ^Ikrcer-
"duties and revenues" as were by the Act "reserved to J^'I'^ment
the respective Legislatures of the Provinces ;" and (2)
such duties and revenues as might be " raised by them,
in accordance with the s[)ecial powers conferred on them
by this Act." It is with the former only of these two
kinds of revenues that their Lordships are now concerned ;
the latter being the produce of that power of "direct tax-
ation within the Province, in order to the raising of a
revenue for Provincial purposes," which is conferred upon
Provincial Legislatures by sect. 92 of the Act.

There is only one clause in the Act by which any
sources of revenue appear to be distinctly reserved to the
Provinces, viz., the J09th section: — "All lands, mines,
minerals and royalties belonging to the several Provinces
of Canada, Nova Scotia and New Brunswick, at the
Union, and all sums then due or payable for such lands,
mines, minerals or royalties shall belong to the several
Provinces of Ontario, Quebec, Nova Scotia and New
Brunswick, in which the same are situate or arise, sub-
ject to any trusts existing in respect thereof, and to any
interest other than that of the Province in the same."
The Provincial Legislatures are not, in terms, here men-
[77G] tioned ; but the words, " shall belong to the several
Provinces," are obviously equivalent to those used in
sect. 126, "are by this Act reserved to the respective Gov-
ernments or Legislatures of the Provinces." That they
do not apply to all lands held as private property at the
time of the Union seems clear from the corresponding
language of sect. 125. " No lands or property belonging
tit Canada, or any Province, shall be liable to taxation :"
where public property only must be intended. They

PRIVY COUNCIL.

Attorn KY-
Gknkual

MEIU'EH.

Judgment.

evidently mean lands, etc., which were, at the time of tho
Union, in .«ome .sense and to some extent publici juris;
and, in this respect, they receive ilhistration from another
section, tho 11 7th (which their Lordships do not regard
as otherwise very material), "The several Provinces shall
retain all their res|)ective pul)lic property, not otherwise
disposed of in this Act, sul»ject to the right of Canada to
assume any lavds or public properfij required for fortifi-
cations, or for the defence of the country."

Their Loi-dships are not satisfied that sect. 102, when it
s])caks of ceitaiii portions of the then existing duties and
revenues as " reserved to the respective Legislatures of
the Pi-ovint-es," ought to be understood as referring to
the powers of provincial legislation conferred by sect. 92.
Even, however, if this were so held, the fact that exclu-
.sive powers of legislation were given to the Provinces as
to " the management and sale of the public lands helonijlng
to the Province," would still leave it necessary to resort to
sect. 100 in order to determine what those public lands
were. The extent of the Provincial power of legislation
over " property and civil rights in tlie Province " cannot
be ascertained without at the same time ascertaining the
power and rights of the Dominion under sects. 91 and
102, and therefore cannot throw much light upon the
extent of the exceptions and reservatvons now in question.

It was not disputed in the arguraeiit tor the Dominion
at the Bar, that ail territorial revenues arising within each
Province from " lands," (in which term must be compre-
hended all estates in land), which at the time of the Union
belonged to the Crown, were reserved to the respective
Provinces by sect. 109 ; and it was admitted that no dis-
tinction could, in that respect, be made between Crown
lands then ungranted and lands which had previously
reverted to the Crown by escheat. But it was insisted,
that a lino was drawn at the date of the Union, and that

PRIVY COUNCIL.

line of tlie
ilici juris;
HI another
lot regard
nces shall
otherwise
Canada to
for fortiti-

2, when it
III ties and
latures of
ferrina' to
J sect. 92.
lat exclu-
)vinces as
belonging
resort to
ic landa
cfislatiou
cannot
ning the
91 and
poll the
uestion.
ominion
1 in each
compre-
e Union
spective
no dis-
crown
sviously
nsisted,
nd that

[777] the words were not sufficient to reserve any lands ih83
afterwards escheated, which at the time of the Union attohnet.
were in private hands, and did not then belong to the • ■ '•"''^■•"al
Crown. Mkkteh.

If the word "lands" had stood alone, it might have 'Tii'^'^'knt.
lieen difficult to resist the force of this argument. It
would have been difficult to say that the right of the lord
paramount to future escheats was " laud belonging to
him," at a time when the fee-sinii)le was still in the free-
holder. If capable of being described as an interest in
lan<l, it was certainly not a present pi-oprietary right to
the land itself. The word "lands," however, does not
here stand alone. The real question is as to the ett'ect of
the words '" lands, mines, minerals and royalties," taken
together. In the Court of Appeal, of the Province of
Quebec it has been held that these words are suffi-
cient to pass subsequent esclieats ; and, for this purpose,
stress was laid by some, at least, of the learned Judges of
that Couit (the others not dissenting), on the paiticular
word '■ royalties " in this context. If " lands and royal-
ties " only had been mentioned (without " mines " and
" minerals "), it would have been clear that the right of
escheats (whenever they might fall), incident at the time
of the Union to the tenure of all socage lands held from
the Crown was a " royalty" then belonging to the Crown
within the Province, so as to be reserved to the Province
by this section, and excepted from sect, 102. After full
consideration, their Lordships agree with the Quebec
Court in thinking that the mention of "mines" and
" minerals," in this context is not enough to deprive the
word " royalties " of what would, otherwise, have been its
proper force. It is true (as was observed in some of the
opinions of the majority of the Judges in the Supreme
Court of Canada) that this word " royalties " in mining
grants or leases (whether granted by the Crown or by a

PRIVY COUNCIL.

1883

Attorney-
General

r.
Merckr.

Judgment.

subje jtj, lias often a special sense, signifying that part of
the reddendum which is variable, and depends upon the
quantity of minerals gotten. It is also true that, in
Crown grants of land in British North America, the prac-
tice has generally been to reserve to the Crown, not only
royal mines, properly so called, but minerals generally ;
and that mining grants or leases had, before the Union,
been made by the Crown both in Nova Scotia and in
New Brunswick ; and that, in two Acts of the Province
[778] of Nova Scotia (one as to coal mines, and the other
as to mines and minerals generally), the word "royalties"
had been used in its special sense, as applicable to the vari-
able reddenda in mining grants or leases. Another Nova
Scotia Act of 1849, surrendering to the Provincial Legis-
lature the territorial and casual revenues of the Crown
arising within the Province, was also referred to by Mr.
Justice Gwynne. But the terms of that Act were very
similar to those now under consideration; and if "royal-
ties," in the context which we have here to consider, do
not necessarily and solely mean reddenda in mining
grants or leases, neither may they in that statute.

It appears, however, to their Lordships to be a fjUacy
to assume that, because the word " royalties " in this
context would not be inofficious or insensible, if it were
regaixled as having reference to mines and minerals, it
ought, therefore, to be limited to those subjects. They
see no reason why it should not have its primary and
appropriate sen.se, as to (at all events) all the subjects
with which it is here found associated — lands as well as
mines and minerals. Even as to mines and minerals, it
here necessarily signifies rights belonging to th(> Crown,
jure corona\ The general subject of the whole section is
of a high political nature ; it 's the attribution of Royal
territorial rights, for purposes of revenue and government,
to the Provinces in which they are situate or arise. It is

PRIVY COUNCIL.

bhat part of

Is upon the

ue that, in

a, the prac-

n, not only

generally ;

the Union,

tia and in

e Province

d the other

"royalties"

to the vari-

sther Nova

icial Legis-

the Crown

1 to by Mr.

were very

if "royal-

ansider, do

iti mining

te.

e a fallacy

" in this

if it were

linerals, it

ts. They

niary and

3 .subjects

as well as

linerals, it

ic Crown,

section is

of Royal

k^ernment,

Ise. It is

a sound maxim of law, that every word ought, prima 1883
facie, to be construed in its primary and natural sense, attoiiney-
unless a secondary or more limited sense is required by General
the subject or the context. In its primary and natural Mk'^ckk-
sense, " royalties " is merely the English translation or Jcdgmknt.
equivalent of " regalitates," "jura regalia," "jura regia."
(See, in voce " royalties," Cowell's " Interpreter ;" Whar-
ton's Law Lexicon ; Tomlins' and Jacobs' Law Diction-
aries.) " Regalia " and " regalitates," according to Du-
cange, are "jura regia;" and Spelman (Gloss Arch.) says,
" Regalia dicuntur jura omnia ad fiscum spectantia." The
subject was discussed with much fulness of learning, in
Dyke v. Walford (1), where a Crown grant of jura regalia>
belonging to the County Palatine of Lancaster, was
held to pass the right to bona vacantia. " That it is a
jus" (said Mr. Ellis, in his able argument, ibid., p. 480),
[779] " is indisputable ; it must also be regale ; for the
Crown holds it generally through England by Royal pre-
rogative, and it goes to the successor of the Crown, not to
the hnir or personal representative of the Sovereign. It
stands on the same footing as the right to escheats, to the
land between high and low water mark, to felons' goods,
to treasure trove, and other analogous '-ii'lits." With this
statement of the law their Lordships a«.',r'30, and they con-
sider it to have been, in suhitar' ( , affirmed by the judg-
ment of Her Majesty in Council i i that case.

Their Lordships are not now called upon to decide
wliether the word "royalties" in sect. 109 of the British
North America Act of 1867, extends to other Rv^yal
rights besides tho.se connected with " lands," " mines ' and
"minerals." The question is, whether it ought to be
restrained to rights connected with mines and minerals
only, to the exclusion of royalties, such jvs eschpu,cs, in

(I) .f) Monif. p. c. \M.

PUIVY COUNCIL.

1883

Attorney-
General

r.
Mercek.

Judgment.

respect of lands. Their Lordships find nothing in the
subject, or the context, or in any other part of the Act, to
justify such a restriction of its sense. Tlie larger inter-
pretation (\yhich they regard as, in itself, the more proper
and natural), also seems to be that most consistent with
the nature and general objects of this particular enact-
ment, which certainly includes all other ordinary territo-
rial revenues of the Crown arising within th'3 respective
Provinces.

The conclusion at which their Lordships have arrived
is, that the escheat in question belongs to the Province of
Ontario, and they will humbly advise Her Majesty that
the judgment appealed from ought to be I'eversed, and
that of the Vice-Chancellor and Court of Appeal of On-
tario restored. It is some satisfaction to know, that in
this result the Courts of Quebec and Ontario have agreed;
and, though it differs from the opinion of four judges,
constituting the majority in the Supreme Court of Cana-
da, two of the Judges of that Court, including tlie Chief
Justice, dissented from that opinion.

This being a question of a public nature, the case does
not appear to their Lordships to be one for costs.

Judgments in Supreme Court of Canada.

[livported 5 Van. S. G. R. 538.]

BiTCHiE, C. J. : -

This is an act on broughi^i by the Attorney-General for the Pro-
vince oi' Ontario to recover from tlie det'entlants the possession of a
certain parcel or tract of land in the City of Toronto, and County of
Yiirk, in the Province of Ontario, being part of the real estate of one
Andrew Mercer, late of the said City of TorDnto, issuer of marriage
licenses, who died intestate, and without Iviaving any heirs or next
of kin, on the thirteoith June, 1871, and whose rt'al estate, it is
alleged, escheated to the Crown for the benefit of the Province of

PKIVY COUNCIL.

ng in the
the Act, to
rger inter-
ore proper
stent with
liar enaet-
ry terri to-
respective

ve arrived
*rovince of

ijesty that

'ersed, and

eal of On-

)w, that in

->:

-ve agreed ;

.r^'

iir judges,

' ii

t of Ciina-

■'>^

ihe Chief

case does

r the Pro-
fession of a

County of
tate of one
f marriage
irs or next
estate, it is

roviuce of

Ontario. The said Andrew Mercer, at the time of his death, was

seised in ftc-simple in possession of the parcel of land in question.

The action was commenced in the Court of Chancery for Ontario

by the filing of an information on the 28th day of September, A.D.

1878.

The defendant, Andrew F. Mercer, demurred to the said infor-
mation for want of equity.

On the 7th day of January, 1879, the Vice-Chancellor made an
order over-ruling the said demurrer.

[G24] From this decision the said defendant, Andrew F. Mercer,
appealed to the Court of Appeal, and the appeal was argued on the
23rd day of May, A.D, 1879; and on the 27th day of March, 1880
the said Court of Appeal affirmed the order, over-ruling the
demurrer, and dismissed the appeal with costs.

Against this last mentioned judgment and order of the Court of
Appeal the defendant, Andrew F. Mercer, now ajipeals to the
Supreme Court of Canada. The parties agree that the appcul shall
be limited to the broad question as to whether tlie Govt.'rnment of
Canada or of the Province is entitled to estates escheated to the
Crown for want of heirs.

We have therefore nothing whatever to do with any other ques-
tion than simply to determine to which Government escheated
estates belong.

The determination of this question depends upon the construction
of the B. N. A. Act.

Before, however, referring to tli it Act, to enable us the better to
understand its provisions and to arrive at a correct conclusion as to
the intention of the Parliament of Great Britain in reference to this
matter, it may be well to see what the state of tlie law was in regard
to escheated estates, anel how such estates were dealt with in the
Provinces at the time this Act passed.

With respect, then, to the law of escheat, the doctrine is unques-
tionably founded on the principles of the feudal system, and is not to
be confounded with I'orl'eitures of land to the Crown, from which it
essentially differs. Mr. Chitty, in his Prerogatives of the Crown,
(p. 230), observing on this difloronco, says : " For forfeitures were as
before observed used and indicted as pimishments by the old Sax'>n
law without the least relation to the feudal system, and they diSer
in other material respects."

[()2.")J And therefore he anys: " Escheats revert . . . to the
lord of the fee who is almost universally the king. In the case

1S8.*?

Attounky-
Genkual

c,
MEliCEU.

.Sui>. C,
Canada.

llitehie, C.J.

m mm

mm/T vj\\

;i i;

1883

Attounky-
Genkkal

Mekcku.

Sui). C,
Canada.

Ritchie, C.J.

I t
I

! -I

PRIVY COUNCIL.

of attainder of high treason, the superior law of forfeiture intervenes,
and renders the doctrine of escheat irrelevant, for by such attainder
lands of inheritance, though holden of another lord, are forfeited to
the Crown."

And Chancellor Kent (1) says of title by forfeiture : " The Eng-
lish writers carefully distinguish betweeu escheat to the chief lord
of the fee and forfeiture to the Crown. The one was a consequence
of tl.e feudal connection, the other was anterior to it, and inflicted
upon a principle of public policy."

It is clear that the law of escheat is an incident of tenure, by
which, for failure i heirs, tli i feud falls back into the 1 ird's hand
by a termination of* • . "ure, and therefore it is said that all lands
and tenements held ii? t\ v.,(ste, whether of the king or of a subject,
are liable to the law of esciieat, and no species of property whicli
does not lie in tenure is subject to escheat, and so Mr. Chitty say.s
(p. 233) : " His Majesty's riglit to escheat stands on the same ground
as every other legal right; it arises out of the seisin, and is, in
general, governed by the same rules as govern escheats to the
subject."

And Chancellor Kent (2) thus speaks of title by escheat: "This
title, in tbe English law, was one of the fruits and consequences
of feudal tenure. When the blood of the last person seised be-
came extinct, and the title of the tenant in fee failed from want of
heirs or by some other means, the land resulted back, or reverted
to the original grantor, or lord of the i'ee, from whom it procee-
ded, or to his descendants or successors. All escheats under the
English law are declared to be strictly feudal and to import the ex-
tinction of tenure."

And so it is said: "The lord on the escheat takes the estate by a
title paramount to the tenant since he is ia of an estate out of which
the tenant's interest was originally derived or carved, and it is said
to be ' a laixed title, being neither a pure purchase nor a pure
descent, but in some measure cuuipounded of both,' and that it
ditl'ers from a forfeiture in that the latter is for a crime personal tu
[62G] the offender, of which the Crown is entitled to take advantage
by virtue of its prerogative, while an escheat results from the tenure
only, * and arises from an obstruction in the course of descent.' It
originated in feudalism and respects the intestate's succession."

And Mr Adams says : " Escheat ia merely an incident of tenure

(1) Com. vol. 4, p. 426.

(2) Com. vol. 4, p. 423.

PRIVY COUNCIL.

re intervenes,
iuch attainder
re forfeited to

; " The Eng-

the chief lord

a consequence

and inflicted

of tenure, by
[le 1 ird's hand
that all lands
r of a subject,
•roperty which
It. Chitty say.s
le same ground
sin, and is, in
scheats to the

escheat: "This

I consequences

•son seised be-

froui want of

ick, or reverted

horn it procee-

sata under the

import the ex-

tho estate by a
\e out of which
I, and it is said
he nor a pure
|i,' and that it
le personal to
Itake advanta-^e

rotn the tenure

)f descent.' It

liccession."

ident of tenure

I. 4, p. 423.

arising out of the feudal system whereby the escheated estate on tim
death without heirs of the person last seised escheats to the lord as
reverting to the original grantor, there being no longer a tenant to
perform the services incidental to the tenure. It is therefore in-
applicable to estates which do not lie in tenure."

And this right of escheat is treated of as a reversion.

In Cruise's Digest (1) it is said : "Escheat is a casual profit
quod jvcci.lit domino ex eventu et ex insperato, which happens to the
lord by chance, and unlooked for. An escheat is therefore in fact a
species of reversion, and is so called and treated by Bracton . . .
and when a general liberty of alienation was allowed without tfie
consent of the lord, this right became a sort of caducary succession,
the lord taking as ultimus hajrea

And in Burgess v. Wheate (2) it is said : "An escheat was in its
nature feudal, . . . and in default of heirs, the land escheated
or reverted strictly speaking, and the legal right of escheat with us
arises from the law of enfeofment t<) the tenant and his heirs, and
then it returned to the lord, if the tenant died without heirs."

And again : " It reverts by operation of law on extinguishment
of an estate that was a fee-simple incapable of any further limitations.
. . . The right comes as a reversion failing heirs."

And in a note to Middlcton v. Spicer (3) by Mr. Eden, he saya :

" In Bnr(jess v. Wlieate it was a question of tenure, the claim of the
Crown having been admitted on all sides to be seignioral and not
prero^ativfll."

If, then, this is a reversionary interest, we all know that reversion
is defined by Lord Coke to be the returning of the land to the
grantor or his heirs after the grant ia determined.

[G27] In another place Lord Coke describes a reversion to be
" where the residue of the estate always doth continue in him that
made the particular estate."

The idea of a reversion is founded on the principle that where a
person has not parted with his whole estate and interest in a piece
of land, all that which he has not given away remains in him, and
the possession of it reverts or returns to him upon the determination
of the preceding estate.

Hence Lord Coke says : " The law termeth a reversion to be ex-
ptctautonthe i)articular estate, because the donor or lessor, or their

1883
Attorney-

GKN'EIIAL
V.

Mekcer.

Siq.. C,
Canada.

Ritchie, C.J.

(1) Vol. 3, i>. 397. (2) 1 VVm Bl. 123, 133, 175.

(3) 1 Brown C. C. 201, 205.

mm.

PRIVY COUNCIL.

1888

A'rrouN'iiY-
Genkuai,

V.
MERClCi!.

Sup. C,
Canada.

Ritchie, Co.

heirs, after every determination of any particular estate, doth expect,
or look for, to enjoy the lands or tenements again. "

And Chancellor Kent (1) thus defines a reversion : " A reversion
is the return of land to the grantor and his heirs after the grant is
over; or, according to the formal definition in the New York Re-
vised Statutes, it is the residue of an estate left in the grantor, or
his heirs, or in the heirs of a testatoi', commencing in possession on
the determina'ion of a particular esUvte granted or devised. It neces-
sarily assumes that the original owner has not parted with his whole
estate or interest in the land. . . .

The usual incidents to the reversion, under the English law are
fealty and rent."

In Bnnter v. Coke (2) before the passing of the statute making
wills spe! ic fr-- > iie death of the party, it was held that "a devise
of lands is not good if the testator had nothing in them at the time of
the mau'lag bis will; f'r a man cannot give that which he has not,
and the statute cay eintunvers mea having lands to devise them, so
that if the devisor has not the lands, he is out of the statute ;" citing
Co. Lit., 392. It was admitted " that, if one has a manor and devises
it, and after a tenancy escheat, that shall pass by the devise as being
part of the manor."

[628] Tills being the doctrine and law of escheat, the Crowu before
Confederation surrendered to the respective Provinces the manage-
ment, control, and disposal of the Crown estate, and the casual and
territorial revenues of the Crown derivable therefrom ; in other
words, the Crown surrendered its rights in the public domain, and
practically placed the Provinces in the same position in referenco
thereto that the Crown itself held.

Our attention has been called by the learned counsel, in his con-
tention for the claims of the Dominion, to the law passed in the
Province of New Brunswick, as illustrative of what the Crown in-
tended to part with in reference to all the Provinces. This Act, us
I stated in the argument, was prepared in England. It was trans-
mitted by Lord Glenelg, the then Colonial Secretary, in a despatch
dated Slst October, 183G, to the Lieut-Governor, Sir A. Campbell,
in which he says : " Sir, — In my despatch of the lOth Septembor,
I apprised you that I was engaged in correspondence with Messrs.
Crane & WiUnot (then delegates from the H. of Ass. ofN. B.) on the
provisi jns of the Act for securinj, the Civil List which it is proposed

(1) Com. vol. 4, pp. 353, Sfj").

(2) 1 Salkeld, 237.

Ill

PllIVY COUNCIL.

te, doth expect,

" A reversion
ter the grant is
New York Re-
the grantor, or
n possession on
isecl. It ncces-
with hia whole

English law avc

statute making
L that "a devise
m at the time of
ich he has not,
devise them, so
statute ;" citing
anor and devisea
devise as being

le Crowu before
;e3 the mauage-
l the casual and
from ; in other
ic domain, and
on in reference

isel, in his con-
V passed in the

the Crown in-
This Act, us
It was trans-
f, in a despatch

r A. Campbell,
.)th Septemboi',
,e with Messrs.

iN. B.) on the

1 it is proposed

,lkeld, 237.

to grant to His Majesty in New Bninswick, I now enclose for your
information a cipy of that bill, which has been prepared in concur-
rence with the Lords Commissioners of His Majesty's Treasury. It
is compiled from the corresponding Acts of Parliament which apply
to the grant of the Civil List in this country, with no other changes
than such as uiiavoi<lably grow out of the different circumstances of
the two cases. "

This Act was subsequently made perpetual, and is to be found in
the Consolidated Statutes of New Brunswick, 1877, title 3, ch. 5,
{p. 1015] and by which it is enacted that :

Sect. 1. "The proceeds of all Her Majesty's hereditary, territorial
and casual revenues, and of all sales and leases of Crowu lands,
woods, mines and royalties, now and hereafter to be collected, hav-
ing been surrendered by the Crown, shall with the exceptions here-
inalter provided, be payable and paid to the Provincial Treasurer
for the use of the Province. "

[G29] Sect. 2 provides for the payment to Her Majesty of the clear
j'early sum of £14, ."300 out of the above and other revenues of the
Province, with preference to all other charges or payments.

Sect. 3. "All moneys paid to the treasurer under this chapter,
except the said £14,500, shall form part of the general revenues,
and be appropriated as such. "

Sect. 4. "The Governor in Council may expend out of the gross
proceeds of such hereditary and other revenues and such sales, the
sums of money which from time to time they may deem necessary
for the prudent management, protection and collection thereof."

Sect. '). "The Governor shall, within fourteen days from the
opening of every session of the Legislature, cause to be laid before the
Assembly a detailed account for the previous year of all the par-
ticulars of the income and expenditure of, and relating to the said
revenues," etc.

Sect. 0. "All grants, leases, etc., by this chapter declared to
be under the control of the Legislature, shall be void unless the
same be made upon sale or lease to the highest bidder at public
auction, after due notice in the Roxjal Ga2e<<c,aud the consideration
thereof be made payable to Her Majesty "

Sect. 7. "Nothing in this chapter shall impair or affect any
powers of control, management, or direction which have been or
may be exercised by the Crown, or by other lawful warrant, relative
to any proceedings for the recovery of any such revenues, or to
compensation made or to be made on account of any of the same, or

1H83

Attornky-
Genekal

Meuoeh.

Rui). C,
Canada.

Ritchie, C.J.

PRIVY COUNCIL.

1883

Attorney-
General

Mercer,

Sup. C,
Canada.

Ritchie, C.J.

M.^'^

to any remission, mitigation or pardon of any penalties, fines, or
forfeitures, incurred or to be incurred, or to any other lawful act,
matter, or thing which has been or may be done touching the said
revenues, or to disable Her Majesty from making any grant or
restitution of any estate, or of the produce thereof, to which Her
Majesty hath or shall become entitled by escheat for want of heirs,
or by reason of any forfeiture, or of the same having been purchased
by or for the use of an alien, or to make any grant or distribution
of any personal property devolved on the Crown for the want of
next of kin or personal representatives of any deceased person ; but
such rights and powers shall continue to be exercised and enjoyed
in as ample a manner as if this chapter had not been made, and a*
the same have or might have been heretofore enjoyed by the Crown ;
but the moneys arising from the full exercise and enjoyment of the
rights and powers aforesaid shall bo a part of the joint revenues at
the disposal of the General Assembly, subject to the restrictions
hereinafter provided."

Sect. 8. "Nothing herein shall an"ul or prejudice any sale, pur-
chase, etc., which, on or before the 17th day of July, 1837, has been
made, given, effected, or created, but the same shall remain good and
valid."

[630] This Act, cited with so much confidence by Mr. McDougall,
as supporting the claims of the Dominion, veiy clearly establishes
that the lands and casual and territorial revenues surrendered to
the Province were to be sold by auction, and that escheated lands
might be granted or the proceeds distributed by the Crown, that is
by the Executive Government of the Province representing the
Crown, without the interference of the Local Legislature ; and in
the Province of New Brunswick anterior to Confederation (and I
have been at a loss to discover that it was different in the other Prov-
inces), the exercise of that right, prerogative, or seignorial, as you
may choose to call it, was exercised there up to and at the time of
Confederation by the Provincial Executive. I may cite the case of
the estate of John E. Woolford, who died in 1866, and on whose
estate, for want of heirs, administration was granted to a nominee
of the Crown, and which estate, real and personal, has been dealt
with by the Governor in Council ; and prior to 1866, 1 may mention
the case of the estate of one Nichols, which was dealt with by order
of the Governor in Council in New Brunswick ; for as Mr. May, in
his Constitutional History of England (1) says, in reference to the

(1) Vol. 2, p. 538.

PRIVY COUNCIL,

[ties, fines, or
ler lawful act,
hing the said

any grant or
to which Her
want of heirs,
een purchased
r distribution
ir the want of
i person ; but
i and enjoyed

made, and as
)y the Crown ;
oyment ot" the
(it revenues at
le restrictions

any sale, pur-
i837, has been
nain good and

McDougall,

y establishes

rrendered to

leated lands

rown, that is

esenting the

iture ; and in

ration (and I

e other Prov-

orial, as you

t the time of

e the case of

id on whose

a nominee

s been dealt

naay mention

ith by order

Mr. May, in

rence to the

€

concession of responsible government to the colonies : " At last
she (England), gave freedom and found national sympathy and
contentment. . . . Patronage has been surrendered, the dis-
posal of public lands waived by the Crown, and political dominion
virtually renounced. In short, their dependence has become
little more than nominal, except for purposes of military defence."

This transfer and surrender, as is well known, was much opposed
in New Brunswick by the then Lieut.-Govenior and his Council ;
and though the House of Assembly and Legislative Council passed
the bill when first presented to it, the Lieut. -Governor refused his
assent, whereupon he was recalled, or resigned, and another Governor
[631] was sent with instructions to immediately call the Assembly
together that the bill might be again submitted to the Local Legis-
lature, which was done, and the bill passed. Extracts from Lord
Glenelg's despatch, dated 6th April, 1837, will shew how this Act
was viewed by the Imperial autiiorities at the time.

Extract from despatch dated Cth April, 1837 from Lord Glenelg
to Mfijor-Gen. Sir John Harvey : " Fourthly. A further question of
great importance having been noticed in Mr. Street's (Mr. Street was
then Solicitor- General, and was sent home to press the views of the
Governor and his Council on the Colonial Secretary, in opposition
to the House of Assembly) letter of the 23rd March, must not be
passed over in silence. That gentleman suggests that it is not com-
petent to the King, with the advice and consent of the Legislative
Council and Assembly of New Brunswick, to alienate the hereditary
revenues of the Crown in such a manner as to bind His Majesty's
royal successors. On this topic I limit myself to a general state-
ment, declining as unnecessary, and therefore as unadvisable, the
discussion of the wide constitutional principles involved in this
inquiry. On careful reflection, I am convinced that Mr. Street's
opinion is not well founded. I do not think that the cession which
during the last century it has been customary to make to Parliament
of the hereditary revenue of the Crown for the life of the reigning
Sovereign only is to be understood as an affirmation of the maxim,
that the King, Lords and Commons of Great Britain and Ireland are
incompetent to conclude a permanent settlement of the question.
That the existing practice is founded on the highest grounds of
expediency is indeed indisputable, but I do not perceive that the
motives which so urgently forbid a permanent alienation of the
hereditary revenues of the Crown in this kingdom apply to the case
of a British Province on the North American continent. That such

1883

Attohnky-
General

Mercer.

Sup. C,
Canada.

Kitchie, C.J.

I'ltIVY COUNCIL.

Attounkv-
Genkuai-

i'.
Mkiickh.

Suj). C,
Canada.

Ritchie, C.J,

1 ',!

a cession may be rendered valid by an Act of General Assembly,
assented to by His Majesty, and that the enactment of such a
colonial law may under some circumstances be judicious and ex])e-
dicnt, might readily be shewn from a reference to our colonial
history. I allude especially to the case of the Island of Jamaica.
The objection, if well founded, would of course api)ly to a settlement
for ten years, as distinctly as if it should be made in perpetuity.
Understanding that Messrs. Crane and Wilmot (delegates from the
House of Assembly), and Mr. Street, concur in thinking that it would
be expedient that the Civil List should be permanently settled, I have
[632] His Majesty's commands to actpiaint you that, if such should
be the opinion of the House of Assembly, you are at liberty to assent
to the Civil List Bill with that alteration."

The whole history of this bill, and the controversies in connection
therewith, will be found in the despatches, addresses and the pro-
ceedings in the journals of the Local Legislature of New Brunswick.

Before this surrender though the title to the public domain was
in the Sovereign, and though the revenues derivable therefrom
luiquestionably formed a part of the territorial revenues of the Crown,
there can, I think, bi- no doubt the practical constitutional principle
acted on was, that those lands and the proceeds and revenues
thereof, though beyond the control of the Local Legislature, were
held and disposed of by the Crown for the benefit of the Provinces
in which I hey were situate ; and all grants in connection therewith
were issued by the colonial executive in the name of the Crown,
under the vreat seal of the Provinces, and thus in New Brunswick
at the time of the surrender there was, as will appear from the
documents I have referred to, a surplus of £171,224 unexpended
which was also surrendered ; and in this connection in the same
despatch Lord Glenelg says: "Sixthly. Mr. Street has objected
that anj' surplus funds which iit the expiration of the term of ten
years may remain in the public treasury, may at that peri(jd be
claimed by the Assembly, although they would have placed at their
disjtosal ail the surplus which has been at i)resent accumulated. I
do not i)erceive the force of this objection. The existing accumula-
tions are surrendered to the House cheerfully ; not merely with con-
tentment but with satisfaction. His Majesty can have no other
interest in the matter than that the fuiKis should be expended in
whatever manner may best advance the welfare of the Province ;
and on that question His Majesty conceives that reliance may, with
far greater safety, be placed on the judgment of the representatives

■f

.:«:-
■^

PRIVY COUNCIL.

111 Assembly,
it of such a
lis and ex])e-
our colonial
of Jamaica.

I a settlement
n perpetuity,
ifes from the
that it would
attled, I have

such should
erty to assent

n connection
ind the pro-
r Brunswick,
domain was
e therefrom
)f the Crown,
nal principle
ad revenues
latiire, were
le Provinces

II therewith
the Crown,

Brunswick

ir from the

unexpended

n the same

as objected

term of ten

t iieriod be

.ced at their

Mulated. I

5 accuraula-

y with con-

e no other

xpemU-d in

Province ;

may, with
esentativea

■4

vl the people than on any other advice. The cession of the existing
fund is, therefore, not regarded by the King in the light of a sacrifice,
but rather in that of a direct advantage. If during the next ten
[G33] years (supposing the Civil List limited to that time) any now
accumulation shouM take i)iace, it will constitute a saving effected
by the frugality of the House of Assembly, to the benotit of which
tliey will have the clearest title."

And to show how abst)lutely Crown rights were intended to be
subjected to Provincial ccmtrol, we need only refer to Lord Cllenelg's
despatch of 2S)th April, 1837, in which he says " tlie cession is co-
extensive with the powers of tlie Crown."

As this was the spirit and intention with respect to New Bruns-
wick, it is not disputed that the Crown substantially dealt in a like
liberal manner with the other Provinces.

Thus we see that at the time of the union the entire control,
management, ami disposition of the Crown lands, and the proceeds
of tlie Provincial public domain and casual revenues, were confided
to the executive administration of the Provincial Government as
representing the Crown, and to tlie legislative action of the Pro-
vincial Legislatures, so that tlie Crown lands, though standing in the
name of the Queen, were, with tiieir accessories and incident.!, to all
intents and purposes the public property of the resi)ective Provinces
in which they were situate and therefore, when property escheated
it liccame reinvested in the Crown for the use and benefit of the
Pi'ovince, and was treated and dealt Avith by the Executive Govern-
ment and Legislatures of the Provinces as part of the public pro-
perty of the Province, and giantable by the Lieutenant-Governur
under the great seal of the Province when the same should be dis-
posed of by the Provincial authorities in the interest of the Prov-
ince. Has then the B. N. A. Act altered this and deprived the
Provinces of the right to public property, which since Confederation
may escheat propter defectum sanguipis, and vested the same in the
Dominion to form part of the Consolidated Fund of Canada I

[034] In considering the bearing of the B. N. A. Act on this ques-
tion, it is, in my opinion, necessary to examine and compare several
of the provisions of the Act with a considerable degree of critical
minuteness.

By sect. 9, the executive government and authoi-ity of and over
Canada is declared to continue and be vested in the Queen.

By sect. 12, "All powers, authorities and functions which under
any Act of the Parliament of Great Britain, or of the Paiiiameiit of

1883

Attorney-
Gkxku.\l

r.
Mkucek.

Sup. C,
Canada.

Ritcliie, C.J.

PRIVY COUNCIL.

1883

Attorney-
Gknkral

f.
Mercer.

Sup. C,
Canada.

Ritchie, C.J.

iiV.i

tho United Kingdom of Great Britain and Ireland, or of the Legis-
lature of Upper Car.ada, Lower Canada, Canada, Nova Scotia, or
New Brunswick, r,re at the Union vested in or exercisealile by the
respective Governors or Lieutenant-Governors of those Provinces,
with the advice, or with the advice and consent of the respective
Executive Councils thereof, or in conjunction with those Councils, or
with any number of members thereof, or by thoao Governors or
Lieutenant-Governors individually, shall, as far as the same continue
in existence and capable of being exercised after the union in rela-
tion to the Government of Canada, be vested in and exerciseable by
the Governor-General, with the advice or with tho advice and con-
sent of or in conjunction with the Queen's Privy Council for Canada,
or any members thereof, or by the Governor- General individually,
as the case requires, subject nevertheless (except with respect to
such as exist under Acts of the Parliament of Gretat Britain or of
the Pprliament of the United Kingdom of Great Britain and Ireland)
to be aboli.shed or altered by the Parliament of Canada.'

Sect. (53 provides for the appointment of executive officers for On-
tario and Quebec necessitated, no doul't, by reason of the Union
of Ontario and Quebec, severed by the B. N. A, Act, rendering a
section .'siniilar t.> tliat relatin<;f to the executive government of
Nova Scotia and New Brunswick inapplicable, viz. : Sect, 64, which
provides that : " The constitution of the executive authority in each
of the Provinces of Nova Scotia and New Brunswick shall, .subject
to the provisions of tjiis Act, continue Jis it exists at the Union until
altered under the authority of this Act," and this is again repeated
in sect. 88.

[G35] And for the same reason it was necessary to declare the
powers to be exercised by Lieutenant-Governors of Ontario and
Quebec, which is done by sect. 65, which is as follows : "All powers,
authorities and functions which under any Act of the Parliament of
Great Britain, or of the Parliament of the United Kingdom of Great
Britain and Ireland, or of the Legislature of Upper Canada, Lower
Canada, or Canada, were or are before or at the Union vested in or
exerciseable by the respective Governors or Lieutenant-Governors of
those Provinces, with the advice, or with the advice and consent of
the respective Executive Councils thereof, or in conjunction with
those councils, or with any number of members thereof, or by those
Governors jt Lieutenant-Governors individually, shall, as far as the
same are capable of being exercised after the Union in relation to
the Government of Ontario and Quebec respectively, be vested in,

"I
■'■I

PRIVY COUNCIL.

if the Legia-
a Scotia, or
ieal)le by the
B Provinces,
le respective
Councils, or
lovemors or
line continue
nion in rela-
irciseable by
ice and con-
I for Canada,
ndividuiUly,
\i respect to
Britain or of
and Ireland)

icers for On-
: the Union
rendering a
I'ernment of
:t. (54, which
rity in each
lall, subject
Union until
an repeated

declare the
)ntario and
All powers,
irliiiment of
)ni of Great
ada, Lower
ested in or
overnors of

consent of
ction with
or by those
I far as the
relation to

vested in,

1883

I
t

I
I

t'.V

■f

Attorney-
General

)•.
Mercer.

Sui). C,
Canada.

d shall, or may be exercised by the Lieutenant-Governor of On-
tario and Quebec respectively, with the advice, or with the advice
and consent of, or in conjunction with the respective Executive
Councils, or any members thereof, or by the Lieutenant-Governor
individually, as the case requires, subject nevertheless (except with
respect to such as exist imder Acts of the Parliament of Great
Britain, or of the Parliament of the United Kingdom of Great j^it^j^^.J.

Britain and Ireland) to be abolished or altered by the respective

Legislatures of Ontario and Quebec."

And ns to the provisions for the appointment of executive officers
for Ontario and Quebec, and declaring the powers and duties of such
otHcers, and as to issuing proclamations before and after the Union,
we find by sect. 134, until the Legislatures of Ontario and Quebec
shall otherwise provide, the Lieutenant-Governors of Ontario and
Quebec may each appoint under the great seal of the Province the
following officers to hold office during pleasure, inter alia : tho
Attorney-General, and in the case of Quebec, the Attorney and
Solicitor-General ; and by sect. 135 it is provided that "Until the
Legislature of Ontario or Quebec otherwise provides, all rights,
powers, duties, functions, responsibilities or authorities at the pass-
ing of this Act vested in or imposed on the Attorney-CJeneral,
Solicitor-General (and other officers named), by any law, statute, or
[f)36] ordinance of Upper Canada, Lower Canada, or Canada, and not
repugnant to this Act, shall be vested in or imposed on any officer to
be appointed by the Lieutenant-Governor for the discharge of the
same, or any of them "

By sect. 136 : " Until altered by the Lieutenant-Governor in
Council, the great seals of Ontario and Quebec respectively shall be
the same, or of the same design, as those used in the Provinces of
Upper Canada and Lower Canada respectively, before their union as
the Province of Canada. "

By sect. 139 : " Any proclamation under the great seal of the
Province of Canada issued before the Union to take effect at a time
which is subsequent to the Union, whether relating to that Province,
or to Upper Canada, or to Lower Canada, and the several matters
and things therein proclaimed, shall be and continue of like force
and effect as if the Union had not been made."

And by sect. 140 : "Any proclamation which is authorized by
any Act of the Legislature of the Province of Canada to be issued
under the great seal of the Province of Canada, whether relating to
that Province or to Upper Canada, or to Lower Canada, and which

PRIVY COl'NCIL.

1883

Attoknky-
Gexeual

r.
Mkuceii.

Sup. C,
CaiKwia.

Ritcliie, C.J.

i:i

is not is.sue(l before the Union, may be issued by the Lieutenant-
GoveriKjr of Ontario, or of Quebec, as its .subject-matter reniiires,
under the great seal tliereof ; and from and after the issue of such
proclamation, the same, and the several matters and things therein
proclaimed, shall be and continue of the like force and effect in
Ontario or Quebec as if the Unicm had not been made."

As tiie Executive Governments of Nova Scotia and New Bruns-
wick wei'e continued those provisions were not necessary as to those
Provinces, but these various enactments and the continuance of the
Executive Governments of Nova Scotia and New Brunswick very
clearly shew that the provincial executive power and authority
was to be precisely the same after as before confederation. That
whatever executive powers could be exercised or administrative act
done in relation to the government of the Provinces respectively by
the Lieutenant-Governor of a Province before conlederation can be
[037] exercised or done by Lieutenant-Governors since confederation,
subject, of course, to the provisions of the Act, as is said, in reference
to Nova Scotia and New Brunswick, and is expressed in reference to
Ontario and Quebec "as far as the same are capable of being exer-
cised after the Union." That is to sa}', that tiie Executive Govern-
ment of the Provinces, as exercised by the Lieutenant-Governors
and Executive Councils, until altered In' the respective Legislatures
continue as before C(jnfederation, except so far as the executive
powers of the Governor-General over the Dominion of Canada may
interfere.

TJierefore, when it is claimed that a Lieutenant-Governor and
Council are not comoetent to deal with a matter or ilo an executive
administrative act that was witliin their competency before confed-
eration, the burthen is cast on those putting forv^'ard such a claim
to shew clearly from the B. N. A. Act tliat by express language or
l>y necessary implication tlie Local Governmenls have been denuded
of that authority, and the power has been placed in the executive
authority of the Dominion. Special pains appear to me to have
been taken to preserv; the autonomy of the Provinces, so far as it
could be consistently with a federal luiion.

To .say then that the Lieutenant-Governors, because appointed by
the Governor-General, do not in ai\y sense represent the Queen in
the government of their Provinces is, in my "pinion, a fallacy ; they
represent the Queen as Lieutenant-Governors did before confedera-
tion, in the performance of all executive o*" adnnnistrativo acts now
left to be performed by Lieutenaut-Govei'iors in the Provinces in

PIUVY COUNCIL,

Liieuteiiant-

1-M

er requires,

jsiie of such

' M

ngs therein

'€

id effect in

Sew Bruns-

as to those

".-*

lance of the

iswick very

(I authority

tion. That

istrative act

lectively bj'

xtion can be

n federation,

in reference

-fl

reference to

being exer-

ive Govern-

t-Governora

jc^ishiturea

3 executive

anada may

veriior and

11 executive

ore conl'ed-

'IB

jch a claim

aiij^uage or

ij^^H

■n denuded

e executive

ue to have

far aa it

)ointc<l by

! Quet'n in

.^9

lacy ; they

confcdera-

'^1

acts now

•ovinces in

';'^H

Attokney-

(tKNKKAL
V.

Mkkcer.
Sill), c.,

Canada.

the name of the Queen ; and this is notably made apparent in sect. 1883

82 which enacts that "the Lieutenant-Governor of Ontario and

of Quebec shall from time to time, in the Queen's name, by instrument

[G;58] under the great seal of the Province summon and call together

Iho Legislative Assembly of the Province ;" and with reference to

which matti-r, nothing is said in respect to Nova Scotia and New

Brunswick, the reason for which is obvious ; the executive authority j^j^^.^^^^ j

at confederation continuing to exist, the Lieutenant-Governors of

those Provinces were clothed with authority to represent the Queen,
and in her name call together the Legislatures ; and also in the
section retaining the use of the great seals, for the great seal is never
attached to a document except to authenticate an act done in the
Queen's name, such as proclamations summoning the Legislatures,
commissions appointing the high executive officers of the Province,
grants of the publ'c lands, which grants are always issued in the
name of the Queen, under tlie Provincial great seals.

These being the diiect enactments in the matter of the executive
powers of the D iminion and the Provinces respectively, it is well to
look at the distribution of legislative powers ; and as to all matters
coming within the classes of subjects enumerated over which
the exclusive legislative authority of the Parliament of Canada
is declare I to extend, there is not to be found one word expressing
or implying the right to interfere with provincial executive,
authority or property or its incidents, whereas, in the enumeration
of the matte.s coming within the classes of subjects in relation to,
which the Provincial Legislatures may exclusively make laws, we
hnd, No. 1, " Tlie amendment from time to time, notwithstanding
anything in this Act, of the Constitution of the Province, except as
regards the office of Lieutenant-Governor ;" and from this, I think,
a fair inference may be drawn, that as the Lieutenant-Governor
under certain circumstances and in certain matters having refert nco
to provincuJ adnunistration represents the Crown, the Provincial
Legi-ilatures ai-e not permitted to iliterfore with this office ; No . 5.
[G39] 'The management and sale of the public lands belonging to
the Province, and of the timber and wood thereon ; No, 113. " Pro-
pcvty and civil rights in the Province" and No. 16. " Generally all
matter.! of a inei ely local or private nature in the Province. " When
we come to the clauses relating to " revemies, debts, assets, taxation,"
we find, sect. 102, creatio-i of a Co'isolidated Revenue Fund : "All
duties and revenues over which the respective Legislatures of Canada,
Nova Scotia and New Brunswick, before ai'd at the Union^ had and

PRIVY COUNCIL.

1883

Attornky-
Genkkal

Mekcer.

Sup. C,
Canada.

Ritchie, C.J.

have power of appropriation, except such portions thereof aa are by
this Act reserved to the respective Legislatures of the Provinces, or
are raised by them in accordance with the special powers conferred
on them by this Act, shall form one Consolidated Revenue Fund,
to be appropriated to the public service of Canada in the manner and
subject to the charges in tuis Act provided."

And as I understand the argument, the words "all duties and
revenues" in this section are mainly, if not entirely, relied on as
vesting in the Dominion the right to escheated estates.

In reading sect. 102 one canuot, in view of the argument whic i
has been so strongly pressed upon us, but be struck with the clear
indication that the words "all duties and revenues" are to be read
in a limited sense, and are nut to apply to all revenues of every na-
ture and description, because in the first place the words are conhned
to those " over which the respective Legislatures of Canada, Nova
Scotia and New Brunswick, before and at the Union had and have
power of appropriation, " and a: e expressly restricted by the excep-
tion of "such portions thereof as are by this Act reserved to the
respective Legislatures of the Provinces, or are raised by them in
accordance with the special powers conterred on them by this Act."
This establishes, to my mind, in the most unequivocal manner, not
only that the duties and revenues referred to were to be confined to
[640] those over which the Legislatures had power of appropriation,
but that with equal clearness the Parliament thereby recognised the
existence of revenues other than those over which the Legislature
had the power of appropriation to which the words were not to
apply, and also that of those revenues over which the Provincial
Legislatures had power of appropriation there were reserved portions
thereof to the respective Legislatures of the Provinces, and which
by the express terms of the section are expressly excepted in like
manner as are those to be raised by the Local Legislatures in accord-
ance with the special powers conferred on them by the Act ; and all
doubt on this point is set at rest by the provision for the Provincial
Consolidated Revenue Funds. In that section this excepted portion
is thus dealt with : (Section 120.) " Such portions of the duties and
revenues over which the respective Legislatures of Canada, Nova
Scjtia and New Brunswick had before the Union power of appro-
priation, as are by this Act reserved to the respective Governments
or Legislatures of the Provinces, and all duties and revenues raised
by them in accordance with the special powers conferred upon them

PRIVY COUNCIL.

Bof as are by
Provinces, or
era conferred
'enue Fund,
manner and

1 duties and
relied on as

iment whic i
ith the clear
re to be read
of every na-
are confined
uiada, Nova
lad and liave
y the excep-
erved to the
by them in
jy tliis Act."
manner, not
i confined to
ipropriation,
cognised the
Legislature
were not to
Provincial
ved portions
and which
ted in like
IS in accord-
Let ; and all
Provincial
ted portion
duties and
lada, Nova
of appro-
jvernments
nues raised
upon them

by this Act, shall in each Province form one Consolidated Revenue
Fund, to be appropriated for the public service of the Province."

Here we see that while by sect. 102 the duties and revenues are
confined to those over which the respective Local Legislatures had
power of appropriation, subject to the exception therein contained,
this sect. 120 recognises as having been reserved, not only duties and
revenues to the Legislatures of the Provinces, but expressly speaks
of duties and revenues reserved to the respective Governments as
well as Legislatures of the Provinces ; and especially in view of the
very strongly urged argument by Mr. McDougall, that the revenues
should be at the disposal of the Dominion Executive to be granted
by the representative of the Crown to those having moral claims on
the intestate (in this case his illegitimate son), the last words of
sect. 102 would seem to shew that the revenues therein referred to
[641] are not revenues thst lial been or were to be disposed of,
because the language is, " shall form one Consolidated Revenue
Fund, to be appropriated for the public service of Canada in the
manner and subject to the charges in this Act provided ;" and as to
the appiopriation of this Dominion Consolidated Fund, alter, by
sect. 103, 104 and 105, charging the same with the costs, etc., of
collection, etc., the interests of the Provincial public debts, etc., the
salary of the Governor-General, the appropriation from time to time
is, by sect. 100 ihiis provided for : " Subject to the several payments
by this Act charged on the Consolidated Revenue Fund of Canada,
the same shall be appropriated by the Parliament of Canada for the
public service," thereby ignoring any right in the Executive to deal
witli this fund in the manner the Crown dealt with the hereditary
revenues of the Crown, or in any manner other than through the
instrumentality of Parliament, and therefore the provision would
work in a manner the exact opposite of that for which Mr. McDougall
contends ; for if escheated estates are held to continue to form part
of the Provincial public property, and to be dealt with after con-
federation as it was before, as the Provincial Executives before con-
federatior granted such estates like all other public lands without the
uiterveulion of the Legislatures, they would still be in a position to do
so, and so to deal with equitable aud moral claims aa sect. 3 of the
New Brunswick Act contemplates the Crown aa represented by the
Provincial Executive ahould do ; but if these estates pass under the
words duties and revenues, and are to form part of the Consolidated
Revenue Fund of Canada, they are withdrawn from executive con-
trol aud must be appropriated, as it is enacted the Conaolidated

1883
Attokney-

tiKNERAL

Meik'ek.

Sup. C,
Canada.

Ritchie, C.J.

PRIVY COUNCIL.

1883

~— /-^

Attornky-
Geneual

Mercek.

Sup. C,
Canada.

Ritchie, C.J.

F;uid of Canada shall be, by the Parliament of Canada, for tl-.e pub-
lic service of Caaada. In looking through the Act wfe look in vaia
[042] for any Provincial revenues granted to the Dominion but those
from which the revenues intended to be reserved to the Provinces
are expressly exempted ; and though there are no duties or revenues
in express specific terms reserved to the Legislatures of the Provinces
of Ontario and Quebec, Nova Scotia and New Brunswick, nor to the
Provinces individually, if we exempt the lumber dues in New Bruns-
wick, as by this Act it is cl< ly expressed that there were revenues
intended to be, and that are reserved to the Provinces, the irresis-
tible inference is, that there must be revenues which arise from or
are incident to or growing out of the property reserved to the Prov-
inces. If we refer to the provisions with reference to the distribu-
tion of Provincial property, we find that as to the Dominion, by
sect. 107, "All stocks, cash, banker's balances and securities for
money belonging to each Province at the time of the Union, except
as in this Act mentioned, shall be the property of Canada, and shall
be taken in reduction of the amount of the respective debts of the
Provinces at the Union ;" and by sect. 108, " The public works and
property of each Province enumerated in the third schedule to this
Act shall be the property of Canada."

"The Thiud Schedule.
" Pruvinckil Public Works and Propertu to he the Property of Canada.

1. Canals, with lands and water-power connected therewith.

2. Pnblic harbours.

3. Lighthouses and piers and Sable Island.

4. Steamboats, dredges and public vessels.

5. Rivers and lake improvements.

G. Railways and railway stocks, mortgages and other debts due by
Uailway companies.

7. Military roads.

8. Custom houses, pos*-offices, and all other public buildings, ex-

cept such as the Goverunienc of Canada appropriate for the
use of the Provincial Legisl.itures and Governments.

9. Property transferred by the Imperial Government and known

as Ordnance property.
10. Armouries, drill sheds, military clothing and munitions of war,

and lauls set apart for general public purposes."
[043] These .".re all the provisiois to be found in reference to the
vesting of Provincial property in the Dominion. With respect to

PRIVY COUNCIL.

for tl;e pub-
look in vaia
on but thoso
le Provinces
} or revenues
lie Provincea
ik, nor to the
New Bruns-
ere revenues
, the irresis-
irise ffom or
to the Prov-
the distribu-
ominion, by
lecurities for
uion, except
da, and shall
debts of the
lie works ami
edule to thia

1/ 0/ Canada.
3with.

jbts due by

ildiugs, cx-

iate i'or the

its.

and known

ona of war,

once to the
respect to

■3»

the Provinces, sect. 117 provides that "The several Provinces shall
retain all their respective public property not otherwise disposed of
in this Act, subject to the right of Canada to assume any lands or
public property required for fortifications or lor the defence ot the
country." Sect. 109 provides that " All lands, mines, minerals and
royalties belonging to the several Provinces of Canada, Nova Scotia
and New Brunswick at the Union, and all sums then due or payable
for such lands, mines, minerals or royalties shall belong to the sev-
eral Provinces of Ontario, Quebec, Nova Scotia and New Brunswick,
in which the same are situate or arise, subject to any trusts existing
in respect thereof, and to any interest other than that of the Pro-
vince in the same."

The executive and legislative powers of the Dominion are large,
and so ot" necessity should be, and while it behoves all Courts in the
Dominion to recognise and give full force and eflfect to all executive
and legislative acts within the scope of such powers, it is at the same
time equally the duty of all Courts, especially this appellate tribu-
nal, to recognise and preserve to the executive governments and
Local Legislatures of the Provinces their just rights, whether poli-
tical or proprietary, and not to permit the Provinces to be depiived
of their local and territorial rights on the plea that Lieutenant-
Governors in no sense represent tbe Crown, and therefore all
seignorial or prerogative rights, or rights enforceable as seignorial
or prerogative rights, of necessity belong to the Dominion.

While I do not think it can be for a moment contended that the
Lieutenant-Governors under confederation represent the Crown as
the Lieutenant-Goveriurs before confederation did, I think it must
be conceded that Lieutenant-Governors since confedi'vation do [644]
represent the Crown, though doubtless in a modified manner.

In my ojjinion it was not intended by the B. N. A. Act to deprive
the Provinces of the executive and legislative control over the public
property of the Province, or the incidents of such property, or other
matters of a purely local nature, except such as are specifically taken
from them, and that within the scope of the executive and legis-
lative powers confided to the Dominion and Provinces respectively
thuy are separate and independent, neither having any right to in-
terfere with or intrude on those of the other ; and while I find a
clear expressed intention of Parliament to continue to the Provinces
all proprietary and territorial rights in all "their respective public
properly " not specifically disposed of by the Act which belonged to
them at confederation, and which the term "public property," as

1883

Attorney-
Gknekal

v.
Mkucer.

L5up. C,
Canada.

Ritchie, C.J.

'4 .'

I-
1

1883

Attorn EY-
Genkkal

Mkrcku.

Sup. C,
Caiiiuia.

Ritchie, C.J.

PRIVY COUNCIL.

used in the 117 th sect, in connection with the other sections of the
Act to which I liave referred, I think may be re<ad as covering all
proprietaiy rights and incidents of property of every nature and
description, I can find no such clear indication of the intention of
Parliament to denude the Provinces of those incidents in the nature
of reversions pertaining to their proprietary rights in the public
property, suc'i as are escheats, and to transfer them to the Dominion
Government to be disposed of as part of the consolidated revenue of
the Dominion by the Parliament of the Dominion.

I cannot bring my mind to the conclusion that it was intended
that the lands and their accessories or incidents should be separated
and the lands should belong to the Provinces and the reversionary or
accessory interest to the Dominion ; that though the Crown has
surrendered all its rights in the property and the revenues derivable
therefrom to the Provinces, when the land escheats for want of [655]
heirs, and the property reverts to the original grantor, it is not to
revert to be held as it was at the time of the grant made for the
benefit of the Province, but for the benefit of the Dominion which
never had any interest in the lands whatever ; that while the Pro-
vinces are to retain their public property and have the management
and sale of the lands and of the timber and wood thereon, the pub-
lic property and lands, reinvesting by reason of the want of heirs,
should become the property of the Dominion, and so there should
be, growing out of and residting from the tenure of the public lands
belonging to the Provincts, public lands belonging to the Dominion,
and subject to its legislation.

I do not think, from a most careful consideration of the B. N.A. Act,
that it could have been the intention of Parliament that while the
public loroperties, and the revenues and proceeds from the di.sposition
thereof, should be retained by the Provinces, and they so continue to
retain the position occupied by the surrender to them of the Crown
rights, that on escheat, the escheated lands should not revert to the
Province, but instead thereof should belong to the Dominion, and so
the managemei:t, conti'ol and disposition of what are commonly
called the Crown lands or public domain in the Provinces conse-
quently be divided, by the withdrawal of the escheated lands from
the control of the government and legislation of the Provinces, and
ves-ted in the Parliament of the Dominion. I find no expressions in
the B. N. A. Act that the Dominion were to be proprietors by virtue
of the Act of any Crown lands in the Provinces or any legislative
puv,\ r granted theui to deal with any such lands, excepting always the

PRIVY COUNCIL.

properties fipecially named, such as beacons, lighthouses ami Sahlo
Islaml, laiKis re-.ervdl for the Indians and public works nnd ]>ru-
perty specifically enumerated in the third Schedule, togftiier [()-4f»]
with such other Provincial lands and public i^roperty as the Doii>inion
may r quire and assume for fortifications or for the defence of the

country.

The Crown having surrendered to the Provinces the Crown lands
and all casual and territorial revenues incident thereto, or growing
thf-reout, the Provinces, so far as the original ownership and beue-
ficiiil interest in the lands and the incidents thereof is concerned,
have by such surrender been placed in the position of the Crown,
and therefore when lands granted ceasb to have any owner propter
defectum sanguinis, or propter delictum tenentis, they revLrt to the
Crown, the original grantor, but to be held as the property and for
th.; benefit of the Provinces.

This was so at cod federation ; the B. N. A. Act in no way changed
the tenure by which these lands were held ; on the contrary, it was
enacted the several Provinces aliould retain their jjublic property,
and, as a nt^cesaary consequence, their incidents and reversionary
interest therein. If the Crown has then surrendt^red the land and
its reversionary interest therein to the Provinces, as no interest in
the land has been vested in the Dominion, it is difiicult to under-
stand how they could have a reversion in such lands ; in fact, it is a
contradiction in terms to say that the lauds never owned by the
Dominion could revert to it by reason of a failure of heirs, or
propter delictum tenentis ; and surely nothing but the most un-
equivocal words could prevent the land from reverting to the
original grantor to be held for the benefit of the Province, to whom
• he lights of the Crown, the original grantor, had been surrendered ;
in other worJs, to I e placed in the same position and held by the
Crwwn for ihe benefit of the Province ai if they never liad been
grantt'J. When then the property reverts to the Crown, I can
[647] discover nothing in this to change the purposes for winch,
under the surrender by the Crown to the Provinces, it was to be
held by the Crown as represented by the Lieutenant-Governor and
the Executive of the Provinces respectively.

I think the terms "all duties and revenues," in sect. 102, under
which it is claimed these escheated estates pass to the Dominion,
refer to the ordinary duties and revenues, such as customs, impost
and excise, and the like, which were at the sole disposal of and
flubject t(j direct appropriation by the Li-gislaturo, and not lands

1883

Attouney-
Gkxf.ual

r.
Mekcer.

Su].. C,
Canada.

Ilitcliie, C.J.

PRIVY COUNCIL.

1883

Attornev-
Gbnekal

Merger.

Sup. C,
Canada.

Ritchie, C.J.

which by accident fall to the lord, or those representing the lord, aa
is said by Coke (1), ' ' Escheat is a word of art, and derived from the
French word escheat(id est)cadere, excidere or accidere, and signifieth
properly when by accident the lands fall to the lord of whom they
are holden." In other words, not casual, accidental or extraordinary
revenues which come in the shape of land, and which lands are
managed and granted and disposed of by the Executive without the
intervention of the Legislature, and under certain circumstancea
without even the proceeds being subject to legislative action, aa in
the case of lands donated to those who may by reason of connection
with the deceased or other reasons have a special claim on the
clemency and favour of the Crown represented by the Provincial
executive.

Very strong observations were made as to the manner in which
the Government of Ontario had dealt with a portion of this estate
and would probably de.al with that in controversy, if it was now
decided that the disposition of the estate belonged to the Provincial
Government. With considerations of this kind we have clearly
nothing to do. Though very pointedly and earnestly put forward
by Mr. McDougall, in his very able and ingenious address, that
those connected with the estate, and who had therefore a moral or
equitaole claim to consideration, would be seriously aggrieved and
[647] injured by holding that the disposition of an escheated estate
belonged to the Provincial and not to the Dominion authorities, this
proposition has not commended itself to my mind in the way it
appears to have so forcibly impressed Mr. McDougall, because I
can see no reason whatever why in a case such as this the Provincial
executive should be guided or should act on any different principle
whatever in regard to the disposal of escheated estates from those
that would govern the Dominion executive ; on the contrary, it
seems to me that precisely the same principles and considerations
that should influence and govern the one should guide and determine
tbi action of the other ; and it must be borne in mind tliat there
m .y be many escheats where no circumstances exist calling for any
special action, and therefore in the older books we find it stated,
" that it is the ordinary course for the Crown ripon petition to give a
lease or grant to the party discovering an escheat with a view to en-
courage discovery" (1 Chitty's Gen. Pr. 280, citing 7 Ves. 71, and
6 Ves. 809).

(l)Lib. I.,c. 1,8. 4(13ed.).

PRIVY COUNCIL.

For these reasons I think the conclusion arrived at by the Court
of A]>peal of Ontario is correct, and this appeal should be dismisspd
with costs.

Strong, J., concurred with the Chief Justice.

188.3

Attorney-
General

Mercer.

Sup. C,
Canada.

Ritchie, C.J,

[Translated.]
FOURNIER, J.: —

The question to be decided in this case is whether the government
of Ontario or that of the Dominion is under our existing constitution
entitled to escheated property. Everyone agrees in recognising that
escheat (la desherence) is a royal prerogative which can only be exer-
cised by the Queen herself or by those to whom she lias specially
delegated her powers in this behalf.

Whiitever may be the origin and nature of escheat it must be ad-
mitted that in the Province of Ontario where the feudal system has
[049] never existed it is less an incident of the tenure of land than
a fiscal prerogative granted to the Sovereign by the English con-
stitution as a source of revenue. It is thus that Blackstone (1)
styles it, classing it among the diflerent sources of revenue of the
S<jvereign : "The Kings Jincal prerogatives, or such as regard his
revenue ; which the British constitution has vested in the royal
person, in order to support his dignity and maintain his power. "

On page 303 at paragraph 17 he defines as follows the pre-
rogative of escheat: "Another branch of the king's ordinary
revenue arises from escheats of lands, which happen upon the defect
of heiis to succeed to the inheritance ; whereupon they in general
revert to and vest in the king, who is esteemed, in the eye of the
law, the original proprietor of all the lands in tlie kingdom. "

This authority establishes three propositions of importance for the
decision of the question under consideration — (1) that escheat is a
royal prerogative ; (2) that it is a source of revenue to the Sovereign ;
(3) that in the eye of the law the Sovereign is considered the original
proprietor of all the lands in the kingdom.

In the legislation prior to the Imperial Statute 1 Wm. IV. c. 25,
the provisions relating to escheat or the appropriation of the pro-
perty and revenue arising therefrom have not affected the preroga-

.iir

(1) Vol. 1, p. 281.

TRIVY COUNCIL.

1888

Attounkv-
Genekal

!•.
MEKtElt.

Sup. C,
Caiiiula.

Fournier, J.

tive of the Crown. The Statutes 39 it 40 Geo. II [. , 59 Geo. III. and
Wm. IV. weie not j assed in order to vest in the Crown any now
rij,'ht8, nor yet to diminish tliose wliicli it already possessed over that
kind of property, but to facilitate their exercise. This properly
is not regarded in any other light than as that of the Crown.
The 59 Geo. III., c. 94, s. 3, declares that the surplus from the sale of
this property, after the execution of the orders of His Maje.'^ty,
[050] "shall be paid to the Commissioners of His Majesty's land
Revenue." The prerogative is left uutouohed, and the property
arising therefrom i-'-'tauis its character of rf.'venue.

It was only by the 1 Wm. IV. , c. 25 that the destination of this
source of revenue as well as the 'ther rights, hereditary, casual, terri-
torial and others specially attached to the Cnnt-n was alienated in
exchange for the civil list. It was during the continuance of that reign
to form part of the consolidated fund of the United Kingdom, under
the conditicms and reservations specified in this Act, one of these
conditions is thus expressed : " It being the true intent and meaning
of this Act tliat the said rights and powers shall not in any degree be
abridged, restrained, affected or prejudiced in any manner whatso-
ever, but only that the money accruing to the Crown after the full
and free exercise of the enjoyment of the said rights and powers,
subject as aforesaid, shall, during His Majesty's life time, be carric^d
to and made part of the consolidated fund of the United Kingdom."
Such is still in virtue of the provisions of the Imperial Act, 1 & 2
Vict., c. 2, the disposition of the rights and revenues specially
attached to the Crown and among others those arising from escheat.

The first change made in the appropriation of the hereditaiy re-
venues of the Crown, in the Provinces which now form the Dominion
of Canada, was introduced by the Act of New Brunswick, Con. Stat.
N.B., Tit. 3, c. 5, the provisions of which are almost the same as
those of the 1 Wm. IV., c. 2.'). Similar provisions were afterwards
inserted in the Act of Union of Upper and Lower Canada in 1840.
At a later date these were modified by the subsequent statutes cited
in detail in the argument of the learned counsel for the appellaiit.
It follows from the condition of the legislation at the time of Con-
federation that the revenues arising from escheat belonged at the
time of the passing of the B. N. A. Act to united Canada. This
[651] proposition being admitted on all sides even by the learned
counsel for the appellant nothing more remains than to determine
whether the B. N. A. Act has not disposed of it as of the other
Provincial revenues in favour of the Federal Govei nnient.

PRIVY COUNCIL.

In my opinion the decision of the qnestion under consideration is
to lie found entirely iu sect. 102, which is thus expressed; "All
duties and revduues over which the respective legislatures of Canada,
Nova Scotia and New Brunswick bi'fore and at the Union had and
have power of appropnation, except such portions thereof as are by
this Act reserved to the respective legislatures of the Provinces, or
are raised by them in accordance with the special powers conferred
on them by this Act, shall form one Consolidated Revenue Fund, to
be niipropriated for the public service of Canada in the manner, and
subject to the charges, in tliis Act provided."

According to this section, all the duties (tons les droits) iind
revenues at the dispostal of tlio legislatures are to form tlie con-
s'llidated revenue fund of Canada, subject to the two exceptions
tluivin mentioned.

Property arising from escheat forms witliout doubt a source of
public revenue, since the Crown has alienated it in virtue of the laws
rtsiiccting the civil list ; this revenue must be included iu the grant
made to the Dominion in geneial terms of all the duties and revenues
of the Provinces. Tlie only exception to this general disposition
made in favour of the Provinces is that of the revenues which are
reserved to them by the constitutioiuxl Act, and which they can raise
in virtue of the special powers therein conferred on them. Sect.
12(i, which creates the Consolidated fund of the Provinces, declares
that it shall be composed of the duties and revenues over which
before the Union they had power of apjiropriation, and which are
reserved to the respective governments or legislatures. These two
sections agree in declaring that all the revenues of the Provinces
except those which are specially reserved to tliem by the constitu-
tional Act shall belong to the federal consolidated fund. In order
[C5'2] to nuiintain that the revenue arising from escheat belongs to
the Provinces, it would then be necessary to find in the constitutional
Act a reservation to that effect, whereas there is no such reservation.
The sources of revenue of the Provinces are pointed out in sub-sects.
2, 3 and 9 of sect. 92, and in sect. 118, which grants a subsidy to each
Province, — but none of these sections contains any special reserva-
tion which can possibly include the revenue arising from escheat.
Tlie only special reservation to be found is that contained in sect.
124, reserving to New Brunswick its privilege of levying on lumber
the duties established by one of its laws passed before the Union.
An exception which has no other effect than to confirm the genera
principle of sect. 102.

1S83

^^^-^

Attounkv-
Genkual

r.
Mkkckk.

Sup. C,
Canada.

Fournier, J.

PllIVY COUNCIL.

1888

Arrr RNKY-
Gknkuaf,

I'.
Mehckh.

Sup. C,
Caiiadn.

Fournier, J.

In order to sui»port liia claim to the benefit of escheat the re-
sponcloiit invokes still another pica deduced from certain dispositions
of the B. N. A. Act. He asserts that sects. 101) and 110 have
effected in favour of the Provinces a legislative transfer of this pre-
rogative.

By sect. 100 " All lands, mines, minerals and royalties belonging to
the several Provinces of Canada, Nova Scotia and New Brunswick,
at the Union, and all sums then due or payable for such lands, mines,
nvinerals or royalties, shall belong to the several Provinces of
Ontario, Quebec, Nova Scotia, and New Brunswick, in which the
same are situate or arise subject to any trusts existing in respect
thereof, and to any interest other than that of the Pruvinco in the
same."

From the declaration contained in this section that all lands and
royalties (reserves royales) belonging to the different Provinces at
the Union shall continue to belong to them, the respondent infers
that the direct property (doraaine direct) of the Crown in all public
[653] lands, has been transferred to the Pr)vince3, and that one of
the results of this transfer, is that escheatt d property ought to re-
vert to the Provinces. But the transfer is neither so general nor so
'ibsolute as the respondent asserts. It is restrained and qualified by
the expressions, *' lands, etc. , belonging, etc., at the Union." Those
terms evidently admit of nothing more than a confirmation of the
limited ownership of the public lands such as it then was — the
power of the Provinces over these lands is in no way increased — no
new p jwer is added to those which they already had — no new pre-
rogative is granted to them. The power remained what it was
before, as is shewn by sub-sect. 5, of sect. 92, restricted to the
management and sale of the public lands belonging to the Province,
and of the timber and wood thereon.

Their power over the lands is thus actually what it was before
confederation, and nothing more. In order to ascertain what is a'
present this power, it is necessary to go back to the prior legislation,
as well imperial as provincial, on this subject. From the examina-
tion which I have made of this legislation, of which Mr. Justice
Gwynne has made so exhaustive a statement that it would be useless
to go over the siibject again, I am driven to the conclusion that the
power of the Provinces over the public lands has not been increased
by sect. 109. It is as it was before confederation, a power of
management, the Crown never having parted by any imperial or
provincial Act in favour of any one, with the direct pi'operty

PRIVY COUNCIL.

11(5 have

t tliis pre-

longing to

runswick,

■■ ■ ■'.

ds, mines,

V ■..'■

)vince8 of

whicli the

■ -

ill respect

nco in the

lands and

KlT.Sa

evinces at

ent infers

all public

lat one of

ght to re-

ral nor so

lalitiod by

" These

'Is

on of the

was — the

-1

sased — no

new pre-

at it was

id to the

Province,

is before

vhat is a

gislation,

Bxamina-

. Justice

)e useless

that the

ncreased

power of

perial or

property

(doiuaino direct) belonging to it in the public lands. In this case,
it is to the Queen as having still the direct property in the lands
tliiit escheated property should revert, if this right is to be regarded
as an incident of the tenure of land rather than as a prerogative of
the Sovereign.

[().j4] But the Province of Ontario never having been subject to
the feudal system, it is not to the Sovereign as lord of the manor
(seigneur) but by the royal prerogative of Sovereignty that the right of
revor>!ion ])roperly l)elongs, by force of the principle which, as Black-
stone saya, raises the presumption that he is proprietor of all the lands
of the kingdom. It is doubtless for this reason that under our present
constitution grants of public lands are still made in the name of the
Qucon. In any case, the argument of reversion founded on the
feudal system, if it admitted of application to the Province of
Ontirio, could only affect immoveable property. What in this case
becomes of moveable property ; to whom will it revert / Is the pre-
rogative to be divided according to the nature of the property, — are
the immoveables to belong to the Provinces and the moveables to the
Dominion ! This question is sufficient to demonstrate the flaw in
the argument founded solely on the right of reversion as an incident
of the feudal tenure. It is more logical to recognise that it is in
virtue of the royal prerogative that the Sovereign has a right to
benefit by every kind of escheated property.

Moreover, supposing that the transfer of the lands was absolute, I
hardly understand how it could by itself involve the alienation of a
prerogative attached to the person of the Sovereign : It is a well
established principle that all legislation affecting the royal prero-
gatives must be formal and express, or result at least from dis-
positions which necessarily imply that the legislator intended to
j< "'ify thora.

Thi4 principle, so often asserted by the decisions of the Courts in
Ensr' id, has again been quite recently reaffirmed by the Privy
Coui.^il in the case of ThSberge v. Landry (1).

There is plainly in clause 109 no expression concerning the pre-
rogative nor are its provisions of a nature which necessarily raise a
presumption that has been alienated.

[055] The argument founded on the expression "royalties" in
the same sect. 109, which was approved in the case of CJmrch v. Blake
(2) seems to have been abandoned by the learned counsel for the re-

1883

Attoknkt-
(Jknkual

1'.
Mkucku.

Sup. C,
Canada.

Fournier, J.

(1) 2 App. Cas., i02 ; ante, Vol. 2, p. 1. (2) 2 Quebec Law Rep. 236.

PRIVY COUNCIL.

1883

Attoun'ey-
Genkhal

1-.
Meucer.

Sup. C,
Canada.

Fournier, J.

spondent. In fact, the term " royalties" is not there used to signify
the powers or attributes of royalty. Tlie explanatif)n which has been
given of this term by the learned counsel for tlie appellants is the
only correct one. It is evident that this expression refers solely to
the rights of percentage or commission which the Crown received
before confederation in the Provinces of Nova Scotia and Np'
Brunswick in respect of mining grants. For these reasons, sect. 109'
does not appear to me in any way to touch the prerogative in cjuestion.

Anotlur r i-gument which has been adopted in this case, and which
does not seem to me more conclusive than that based on sect. 109, is
one drawn from the power of the legislatures over property and
civil rights. Escheat being an interruption o: the succession, and
the Sovereign only taking tlie property as idtimua hreres, the legis-
latures can, it is said, change this order of succession. But escheat
is a mattur of prerogative and not a question of property or civil
right. Besides, the existing order oi succession admitting this pre-
rogative in favour of the Sovereign, it would be necessary to shew
that the power of legislating with respect i.o royal prerogatives
belongs to the legislatures. This is only going back i,gaintothe
question with whom rests the sovereign authority under the exist-
ing constitution, over the subjects of legislation not specially dele-
gated, a ([uestion on which I Iiiive already had occasion to give my
opinion. I do not think it necessary to return to this ([uestion, for
I think sect. 102 is enough to determine the question under con-
sideration.

[656] Having read the very elaborate judgment of Mr. Justice
Gwynne I have contented mys-lf with indicating shortly the grounds
of my agreement with his conclusions, I am therefore of opinion that
the appeal should bo allowed.

Hf.nrv, J. :

Having fully ccmsidered the interesting and liighly important
interosts involved in the discussion and decision of this case, I shall
now briefly state the conclusions at which I have arrived.

On the part of tlie respondent it is claimed that on the failure of
heirs of Andrew Mercer, who died intestate, the Province of Ontario
became entitled to his estate — both real and ^jersonal — as legislative
assignee of the Crown.

On the part of the appellants it is contended tliat no such assign-
ment was made, but that, by the B. N. A. Act, the a&signment, if
any, was to the Dominion.

PRIVY COUNCIL.

If, therefore, the claim of the respondent be not sustained, our
jiulgnient must be for the appellants, whether or not the Dominion,
by the Act in question, became entitled to the position claimed for
Ontario.

If the majority of the Court should be of the opinion that the
respondent's claim cannot be allowed, it will be unnecessary, in niy
opinion, to consider the proposition advanced by the appellants,
that the assignment was to the Domini(m. It has been contended
in otlier cases that plenary le;ii8lative jiowers were given by the Act
mentioned over all subjects and for all objects, either to the Parlia-
ment of Oanad.'. or to the se^ ral Legislatiires. I have, in at least
one of my judgments, refu'^ed to admit the cor.octness of that pro-
position ; and have hold that we must look to the Act and trace to
[057] ii; the right to higislate in reg.ird to every matter arising for
decision. If we alwr.ys keep iii view tlie consideration that t!\o
whole legislative power is given by it, and by it alone — a i)osition
retjuiring no argument to sustain — and determine from that the
existence of any legislative power claimed, the solution will, to th:it
extent, be easier, and the dcoiiinii raoro likely to be correct. There
are, no doubt, many subjects given fully, eitlicr to the Dominion or
to the Local Legislatures, oi- in part to eacli, wherein it is manifest
the one or the two, each of the part allotted to it, should have legis-
lative power to deal wiLh the whole of such subjects ; but although
that may be properly said to be the general rule, I maintain the
existence of cases tl:,«,t should be declared exceptions.

It is not necessary, as I have before said and for the reasons
given, to be shewn, that the right claimed by the respondent should
appertain to the Dominion. It may be that the latter has no such
right ; but that conclusion, in my opinion, should have little weiglit
in the ])resent case. To recover in tliis action, the exclusive right
must be shewn in Ontario. Tiie ajijiellants are entitled to our judg-
ment unless the respondent shews a valid legislative ti nsfer of the
prerogative right in question to the Province ; and such a transfer
as would deprive the Sovereign of the right to its future extn-cise.
I am induced to make these suggestions, as many of the reasons for
arriving at the conclusion that there was no such transfer to the
several Provinces composing the Dominion apply with equal force to
sliew there was none to the Dominion.

I have said that we must seek from the B. N. A. Act, and fi-oui
that ahine, for the sustainment of the respondent's claim.
Our attention was directed at the argument to the iiositi'iu cif

1883

Attorney-
Gknkkal

Meuckh.

Sup. C,
Canada.

Henry, J.

PRIVY COUNCIL.

1883

Attornky-
Genebal

Mekcer.

Sup. C,
Canada.

Henry, J.

Canada immediately preceding the passage of the Act as regards
[058] Crown or waste lands, and also to that of Upper Canada before
the union with Lower Canada. Holding, however, the views I do
as to the result of the union of the four Provinces in 1867, I am
unable to feel that much, it' any, weight should be given to an argu-
ment founded on the position, as touching the question under con-
sideration, which the Provinces or any of them occupied at any time
before confederation, except so far as the Act specially refers to such
position. The Imperial Act was not one forced upon the Provinces
by an arbitrary proceeding of an overruling legislative body, de-
priving them, or any of them, of legislative power. In such a case
it might be contended that the extent of the deprivation must be
ascertained from the Act ; and as regaris any subject or matter not
embraced in it, the power would still remain. Here, however, the
case is far difl'erent. The Act was passed, as it recites, on the appli-
cation of the Provinces to give legislative sanction and authority to
an agreement entered into on the part of the Provinces for their
fetl"-ral union. The implied, if not expressed, princiijle acted on
was, that all rights and privileges, including legislative as well as
others, of each of the Provinces, should be surrendered ; and that
each should, if the un'on were consummated, depend subsequently
for the exercise of their rights and pi'ivileges upon the Imperial Act
to be passed, to give effect to the agreement for union entered into.
This is patent in the Act itself, and in the resolutions of the dele-
gates upon which it was founded and passed. I could give many
reasons, and shew many facts, to prove the correctness of this pro-
position ; but it appears to me only necessary to suggest that if it
were intended to be otherwi^^, we would reasonably expect to find
ju'ovision made for intended exceptions. The absence of any such
is strong presumptive evidence that none were desired.

Sect. 102 of the Act gives to the Dominion the appropriation of
[(559] "All duties and revenues over which the respective Legis-
latures of Canada, Nova Scotia and New Brunswick, before and at
the Union, had and liave power of appropriation, except such por-
tions thereof as are Ijy this Act reserved to the Legislatures of tho
Provinces, or are raised by them in accordance with the special
powers conferred on them by this Act, to form one Consolidated
Revenue Fund, to be appropriated for the public service of Canada."

IJy the terjns and provisions of that section all the duties and
revenues controlled before the union by the Legislatures of the
Provinces, with the excejttiou of the portions reserved by the Act to

i i

PRIVY COUNCIL.

the Provinces, were clearly given to the Dominion. If, then, before
tlie union, the right claimed by the respondent was vested in the
Provinces, it was transferred to the Dominion by this section, unless
we find it reserved in the Act to the Provinces. I think, therefore
that the decision of this case should not be affected bj' the position
of the Provinces, or by their legislation, before the union, with the
exception I have before mentioned. If the portions of the revenues
reserved to the Provinces cannot be construed to include the right
in (juestion, it matters not that it can be satisfactorily and un-
doubtedly shewn that Ontario possessed it before the union.

The reservation to which I have just referred we find, on reference
to the Act, to bj "lands, mines, minerals and royalties, belonging
to the several Provinces at the Union." " Lands " and " royalties "
need only to be referred to in this connection. As to the first, it is
contended that by the mere transfer from the Crown to the Pro-
vinces, the prerogative right to an escheat, on the failure of heirs, is
transferred. The first inquiry naturally is, had tb; Province of
Canada, before the union, that right ? If it had not, then it could
not be a part of the reservation. It was the duty of the respondent
to have pointed out some legislation of the Imperial Parliament
al>oli.<hing or transferring the prerogative right of the Crown by
[GGO] escheat over lands in the Provinces held in free and common
socage, previc us to the accession of His Majesty William IV. ; or to
some such statute repealing the statute passed in the first year of his
reign, cap. 25, by which His Majesty surrendered to Parliament, to
form part of the Consolidated Fund of the kingdom, His Majesty's
interest in the hereditary revenues of the Crown, and in the funds
which might be derived from any droits of the (^ ^wu or admiralty,
from any casual revenues either in His Majesty's ..>reign possessions
or in the United Kingdom ; and providing that, after his decease,
all the said hereditary revenues should be payable and paid to his
heiis and successors ; to which was added a proviso, that nothing in
the Act should extend, or be construed to extend, in any wise to
impair, affect or prejudice any rights or powers of control, managc-
.^lent or direction wliich hfid been or might be exercised by autho-
rity of the Ciown relative (amongst other things) "to the granting,
disposing of, or leasing any freehold or copyhold property, or the
produce or any part of the produce or amount or value of any free-
hold or copyhold to wliich His Majesty, or any of his royal prede-
cessors, have or hath, or shall become entitled either by escheat for
want of heirs, or by reason oi any forfeiture . . . or to the

1883

Attorney-
General

Mehcer.

Sup. C,
Canada.

Henry, J..

I«'i|

PKIVY COUNCIL.

1883

Attohney-
Geneual

i:
AIeucer.

Sup. C,
Canada.

Henry, J.

granting or distributing of any personal pioperty devolved to the
Crown by reason of the want of next of kin or personal representa-
tives, of any deceased peison," but tiiat the same should be enjoyed
in as full and effectual manner as if that Act had not been passed ;
tlie Act declaring that tlie said riglits and powers should not be )j
abridged, restraine'l, affected or prejudiced in any manner what-
ever ; but only that the moneys accruing to the Cr.)wn, after the full
and fiee exercise of the enjoyment of the said rights and powers,
subject as aforesaid, should, during His JIajesty's life, be carried to
and made part of the consolidated fund of the United Kingdom.

[()()1] The Act of the Province of New Brunswick for the transfer
of the hereditary, casual and territorial levenues, and of the lands,
woods, mines and royalties, contains similar provisions as to the
reservation of the riglits of the Crown to inake any grant or restitu-
tion of any estate, or of the produce thereof, to which it might
become entitled by escheat for want of heirs, etc., or to make any
giant or distribution of any personal p.-opeity devolved to tlie
Crown for want of next of kin, etc. , and declaring that it was only
the moneys arising, after lUe full and fre^ exercise and enjoyment
of the rights reserved, should be carried to and form part of the con-
solidated revenue of New Brunswick. That Act has been le-
enacted, and is still in force.

It could not therefore be successfully contended that in New
Brunswick the Local Legislature could legislate upon the subject,
as that Province could not claim the right under the provisions of
the B. N. A. Act, not having enjoyed or exercised any such right
previously, but, on the contrary, expressly legislated against it.
Having been sijecially exempted from the opeiation of the New
Brunswick Act, it may be contended that, inasmuch as the Con-
federation Act contains no such reservation, it was intended to pass
the x-ight claimed ; but it will be seen that the terms of the latter
are n(jt general, and do not apply at all to the hereditary Crown
revenues as such, but specifically re'er to hmJs, mines, mineials
and royalties. Tii-e agiment might be applicable to the grint to
the Uuminion in its comprehensive terms, if the Provinces had pre-
viously such right, but is not applicable to the specific reservation
to the Provinces.

Up t I the time of the union of Upp^r and L)wer Canada in 184(i,
it cannot be claimed tliat either had any claim to control the appro-
priations of the casual ov territorial revenues of the Crown. By the
[(i02] Imperid Act passed to consummate that union, it was pm-

PRIVY COUNCIL,

vidod that before any Act of the United Provinces, relating to or
allVcting Her Majesty's prerogative touching the granting of waste
liuuls of the Crown, could receive the royal iissent, it was ronuired
to be laid before both Houses of the Britisli i'arlianient for thirty
days ; and that if either house, dui-ing that period, sliould pass an
address asking Her Majesty to withhold her assent, it would not
tliereafter be lawful for her to give it. And also that any law
divesting the Crown of any of its prerogative rights, and vesting
them in the Provincial Legislature, must emanate from, or be ex-
pressly confirmed by the Imperial Parliament. The latter pro-
vision, I take, governed the Province of Canada up to the Confedera-
tion Act, and when on one occasion a Provincial Act was assented
to— as 1 presume inadvertently — without the Act having been laid
before both Houses of Parliament as required, a ratifying Act of the
Imperial Parliament was passed as necessary to validate it. I can
find no legislation of the Imperial Parliament since to change that
position of the matter.

It is contended that, inasmuch as the "management and sale" of
Crown lands is vested in the Local Legislatures, it is more reason-
able to assume it to have been intended to include the right to ac-
quire a title again by escheat, rather than that the Dominion should
take it. That was however, a matter more for those who procured
the passage of the Act, and for the Parliament that passed it, than
for us. We are not to say what the provision shoxild have been, but
what it is. If I were satisfied that the prerogative right in question
was in reality transferred by the Confederation Act, I should be
much more inclined to conclude that it was to the Dominion, by
force of the general terms of the grant to it, than to the Provinces
by the restrictive terms of the grant to them. By sect. 102 it will
[(J()3] however be seen that the grant bo the Dominion is limited to
the " duties and revenues over which the respective Legislatures of
Canada, Nova Scotia and New Brunswick before and at the Union
had and have power of appropriation." If therefore the Legislatures
of those Provinces had not, before or at the union, the right to deal
witli tlie subject matter now in (question, it cannot be contended
that it passed to tlie Dominion by virtue of that section. If such
should be found to be the case it will, I have no doubt, be found to
make no practical difl'erence, as we have every reason to assume the
right will be exercised by the Sovereign as recommended and sug-
gested by her representative in the Dominion.

The Imperial Parliament has never, as far as I have been able to

1883

Attorney-
Gkneijal

Mkroeh.

Sup. C,
Canada.

Henry, J.

id.

1883

Attorney-
General

t'.
Mercer.

Sup. C,
Canada.

Henry, J.

PRIVY COUNCIL.

discover, attempted to deal with the peculiar prerogatives of the
Crown until previously voluntarily surrendered by tlie Sovereign ;
and with that now under consideration the British Parliament has
not in any way interfered. If the Province of Ontario should be
found right in dealing with it, a position will be attained by it which,
as far as I can discover, has not been reached in any other part of
Her Majesty's dominions.

It is admitted that up to 1840 the prerogative right to escheat in
cases like the present vested in Her Majesty the Queen. If pre-
vious to that an estate was left without heirs, the Queen would take
the title. She would not, however, take it merely as a source of
revenue, for such was seldom appropriated for that purpose. Up to
that time the title and control of all public or waste lands was in the
Queen. The Province had no title thereto, and the patents were
from the Queen. Under what rule or upon what principle could the
Province claim, through an esclieat, an estate it never before owned.
Escheat is by law defined to be " an obstruction of the course of
[644] descent, and a consequent determination of the tenure by
some unforeseen contingency, in which case the land naturally results
back, by a kind of reversion, to the original grantor or lord of the fee."
If that definition be correct, and I cannot think it will be doubted,
then in respect of all lauds granted, or patented, previous to 1840,
the Province could, by no possibility that I can discover, claim as
the original grantor, or lord of the fee. If, indeed, the patent had
been shewn to have issued since 1867, when the Confederation Act
was passed, it might be more interesting to consider and apply to it
the doctrine of escheat than under existing circumstances, and to
decide whether or not the Act transferred the right claimed. If,
however, we were expected to decide that question, it should have
been submitted to us by evidence shewing the patent to have issued
since the Confederation Act came into operation. That is not tlio
case before us, and I need not speak positively as to it, but will con-
tent myself by saying that for other reasons given, I am of opinion
that, even in that case, the respondent would fail in sustaining his
claims.

It was contended on the part of the respondent that it could not
be, that while the Afid, before being granted, was held by Her
Majesty for the use oi the Province of Ontario, yet upon, or after,
the grant in fee simp'.e, the reversionary estate would be held by Her
Majesty for the use of the Dominion of Canada. The answer to that
proposition is, that after the grant Her Majesty had no substantial

PRIVY COUNCIL.

interest, such as a reversion on the expiration of a lease. The
whole estate was transferred without any reserve, or any provision
for a reversion. Her Majesty held not the smallest estate known
to the law in it. By the unforeseen accident of the failure of heirs,
or by a forfeiture she again becomes entitled, but in the meantime is
neither the owner nor the trustee of any other in regard to it. She
[665] takes it in her own right as the original grantor, having had
before the forfeiture or failure of heirs no title whatever. By
English law and practice she can dispose of that title when accrued
as she pleases, independent of parliamentary control. In the large
majority of cases, however, as others lose by the accident which
gives her title, she refuses the personal benefit caused by it, and
restores, or rather grants, the subject-matter to those who, but for
the fccident, would most probably have succeeded to it. The power
to remedy the injurious result of such an accident in many cases that
happen, must be highly prized by any right feeling Sovereign ; and
it is one not yet controlled by imperial legislation. It nmst, there-
fore, have been considered wise and proper that such should continue
to be exercised.

On the part of the respondent it was presented to us simply as a
matter of revenue, as between the Dominion and the Provinces. I
view it very differently ; and think myself bound to uphold a pre-
rogative right, the exercise of which is more likely to be less exact-
ing than if otherwise held — and which has been so long enjoyed with
apparent satisfaction in the United Kingdom — until it is made
satiffactorily to appear that it no longer exists.

I think such transfer should not be adjudged by a speculative
construction of a doubtful statute, but by a most clear and positive
enactment. Besides, it is a well-known rule that the Sovereign is
bound by no statute unless specially named therein, and that any
statute affecting adversely the prerogative rights of the Sovereign
does not bind him unless there are express words indicative of that
object. If that rule of law be not violated, the grant of the lands,
mines, minerals and royalties belonging to the Provinces at the
[666] union in 1867 cannot iio adjudged to affect in any way the
royal prerogative througli MJiion lands, by escheat for want of heirs,
become vested in the Sovereign. That doctrine was acted upon and
declared in force by the Pri \y Council in a comparatively late case (1)
and cited by the counsel of the appellants at the argument.

1883

Attorney-
Genkkal

Mercer.

Sup. C,
Canada.

Henry, J.

(1) Theberge v. Landry, 2 App. Cas. 102 ; ante, vol. 2, p. 1.
4

1883

Attornky-
Oenkual

Meucer.

•Sup. C,
■Caniida.

Henry, J.

PRIVY COUNCIL.

Again it is claimed that the right in question is given to the Pro-
vinces through the transfer by tlie Act of the subject-matter termed
"royalties." The objections last urged will apjily with equal force
to that subject. The term "royalties" is of very general import
and very comprehensive ; but it cannot be contended in this case
that it includes the transfer of all that might come under that
designation. "Royalties" as to mines is well understood in Eng-
land to be the sums paid to the Sovereign for the right to Avork the
royal mines of gold and silver ; and to the owner of private lands,
for the right to work mines of the inferior metals, coal, etc. In
Nova Scotia and New Brunswick, if not in the other Provinces,
mines and minerals were at the time of the union being worked ;
and, in Nova Scotia, a revenue therefrom was derived by the
government and which, in the Acts of that Province, were called
" royalties." That the income thus derived should be continued to
that Province, it was necessary that provision therefor should be
made ; and the use of the term was apparently 'intended for that
purpose, and, at the same time, to give to the other Provinces the
continuance of the same right, where such was previously enjoyed.
The provision of the Act had therefore sufficient in the fact I have
stated to furnish a subject-matter to which it could be referable, and
upon which it could operate without giving it any additional or
more extended application. The object was to secure to the Pro-
vinces something at once available for revenue to be apjiropriated
[6G7] by them in their Legislatures, and by their several govern-
ments, for public purposes. It does not, however, follow that the
words used in the provision should be adj udged to include the prero-
gative right of the Sovereign in respect of any title she might obtain
by the accident of a person dying intestate without heirs. Such an
assumption as the latter is quite unnecessary to give operation to
the provision ; and for the many reasons I have given, I think it
does not include what is claimed ; nor can I arrive at the conclusion
that such was intended. These views are in accordance in many
respects with those I expressed in the case of Lenoir v. Ritchie. (1)
I may add, that in that case they were not alone my views, but those
of all my learned brethren who heard and decided it ; and I have
heard nothing since tending to change or weaken them. After
giving my views, as I have done, in reference to the right in ques-
tion, I need hardly say that I consider the Act of the Province of
Ontario in relation thereto ultra vires. I must, therefore, in accord-

(1) 3 Can. S. C. R. 575 ; ante, vol. 1, p. 488.

PRIVY COUNCIL.

ance with those views, decide that the resjiondent has not established 1883

the positi m upon which liis right to recover in the suit is based ;
that the judgment appealed from shoukl be reversed, and that our
judgment should be for the appellant, with costs.

Tascuebeau, J. : —

Thougli I have not failed to give the able argumentation of the
learned counsel heard before us on the part of the respondent in
this cause the consideration it deserved, I have been unable to alter
my views on the question submitted as I expressed them in the
Fraser Case (I) where the same ([uestion was before me in the
Superior Court of Kamouraska, and I am si ill of opinion that under
[6f)8] the B. N, A. Act the right to escheats propter defectum san-
guinis belongs exclusively to the federal power. As this last case is
fully reported, I have not written down at full length the reasons
upon which I have come to a conclusion in the present case. This,
however, would, under the circumstances, have been useless, I
concur entirely with what my brother Gwynne says on the con-
struction to be given to the word " royalties," and to the word
''lands" in sect. 109 of the B. N. A. Act, as well as with what he
says on the doctrine of reversion relied upon by the respondent.
I may remark that this doctrine of reversion, end the reasons given
in the present case by the Ontario Court of Appeal applicable to
real estate, do not support the Quebec Court of Appeal in the
Fraser case, (1) where the question as submitted related to personal
as well as real estate. To say, as has been said, that as escheats
fall within the words " property and civil rights in the Province,"
they belong to the local power, is a petitio jirincipii. It is taking
for granted that they do not belong to the Crown, to the federal
power ; for, if they belong to the federal, they, of course, do not fall
under the words " property and civil rights in the Province," and
they cannot in any shape whatsoever be legislated upon by the local
power. Sect. 117 of the B. N. A, Act, relied upon by some of the
Judges in the Quebec Court of Appeal, has nothing to do wit,, the
(juestion, and was not relied upon by the respondent before this
Court. As to the word " royalties," to be found in sect. 109 of the
B. N. A. Act, which word, according to some of the Judges in the
Quebec Court of Appeal, in the Fraser case (2), transfers and reserves

Attouney-
Gknehal

V.
M.EHCER.

Sup. C,
Canada.

Henry, J

(1) 1 Quebec Law Rep. 177, post.

(2) 2 Quebec Law Rep. 236 ; post, sub-nom. Attorney-General of Quebec v.

Attorney-General of the Dominion,

i i

I II

PRIVY COUNCIL.

nii

1883

ATTOKNKt-

Genkral

Mekceu.

Sup. C,
Canada.

Taschereau, J.

: ;!(

escheats to the Provincial Goveniments, the respondent has, rightly
in my opinion, been unwilling to base hia case upon it in his ivrgu-
[6G9] ment before us. To my mind sect. 102 of the B. N. A. Act
is conclusive. Tlie Legislatures of Canada, Nova Scotia and New
Brunswick, before and at the Union, had power of appropriation
over the revenues arising from escheats. Such revenues have not
by the B. N. A. Act been reserved to the Provincial Legislatures.
Neither can these revenues bo said to be raised by the Provincial
Legislatures, in accordance with the special powers conferred upon
tliem by the said B. N. A, Act. Then, they form part of the con-
solidated revenue fund of the Dominion, according to this sect. 102.
This is so for real as well as for personal property, as I read the
Act. The argument of the respondent, based upon the doctrine of
reversion, seems to mo defective in that it leaves the personal pro-
perty of a person deceased intestate without heirs to the Federal
Government, whilst it gives his real property to the Local Govern-
ment.

Any argument Avliich leaves Mercer's personal estate, which is
very large, to the Federal Government, whilst it gives his real es-
tate to the Local Government must, as I view it, be wrong, and
contrary to a sound interpretation of the B. N. A. Act. The imperial
authority cannot have intended such a division of the revenues from
escheats. I may also remark that in the Province of Quebec the
laws relating to escheats under art. 637 of the Civil Code are not
derived from the feudal system, and are anterior to the feudal ages,
so that this d()Ctrine of reversion could not apply there. It seems to
me that anj' argument which under the B. N. A. Act does not and
cannot apply equally to all the Provinces, must be contrary to the
spirit and intent of the B. N. A. Act. This doctrine of reversion
seems to me also defective in that it cannot apply to lands which
did not belong to the Provinces at the time of the union. Lands
which did not form part of the public domain at the union were not
[670] given to the Provinces by sect. 109 of the Act. Lands of
persons dying intestate without heirs in any one of the Provinces
before confederation did not revest in the Province, but escheated
to rjie Sovereign, and belonged to him. He alone had the title to
tliem. The Provinces had been given by the Sovereign, and pos-
ses- od at the union, power of appropriation over the revenues
arising from this right of escheat (the revenues only, not the prero"
gative right itself, which always remained and remains in the person
of the Sovereign), and these revenues by sect 102 of the Act have

PRIVY COUNCIL.

1883

Attouney-
Gknkbal

Mkkoer.

Sup. C,
Canada.

been given to the Dominion Govornmont. All duties and revenues
over which the Provinces had, before confederation, power of ap-
propriation are by said sect. 102 given to the Dominion Govern-
ment, save and except only such portions of said duties and revenues
which are by the Act reserved to the Provinces. Sect. 12(j distinctly
enacts that the Provinces shall have for the future such jjortions

only of said duties and revenues which are by the Act reserved to _ , _

•' -nv • • Tascherjau, J.
tlicm. This is clear. For the Dominion, all duties and revenues,

except those expressly reserved to the Provinces. For the Pro-
vinces, none of said duties and revenues but such portions thereof
as are expressly reserved to them. Tlie Provinces have consctiuently
to establish that the Act reserved to them the revenues from escheats.
Tlie onus probandi is on them. I fail to see that in any part of the
Act these revenues have been so reserved to them.

As to the argument, that as sect. 102 enacts that the duties and
revenues therein mentioned shall form part of the consolidated
revenue fund of the Dominion, it would be impossible for the Crown
to relinquish its rights to revenues from escheats in favour of illegi-
timate children of the deceased or otherwise, it may be remarked
that this argument, if good, would ajjply equally to the statute
[G71] (Con. Stat. C. , c. 10. s. 5), (1) in which it was also enacted
tliiit the duties and revenues, including escheats, would form part
of the consolidated revenue of the Province of Canada as CDUstituted
before confederation. Yet, under the said Act it has never been
doubted that the Crown could relinquish its rights to escheats when
it wished so to do.

The question submitted to us by one of the learned counsel for
the respondent as to whether the Queen forms part of the Local
Legislatures seems to me to have no practical bearing on this case.
That, when anything which, according to the principles of the

'ii

.'*!:

IP-

(1) Con. Stat. C, c. 10, s. 5 :—" Dur-
ing the time for which the sums
mentioned in the said schedules are
severally payable, the same shall be
accepted and taken by Her Majesty
by way of Civil List instead of all
territorial and other revenues at the
disposal of the Crown arising in this
Province ; and three-fifths of the net
produce of the said territorial and
other revenues at the disposal of the
Crown within this Province, before
the day last aforesaid, shall be paid

over to the account of the said Con-
solidated Revenue Fund.

(2) "And also during the life of Her
Majesty, and for five years after the
demise of the Crown, the remaining
two-fifths of the net produce of the
said territorial and other revenues
at the disposal of the Crown within
this Province, before the day last
aforesaid, shall also be paid over in
like manner to the account of the
said Consolidated Revenue Fund,"

TRIVY COUNCIL.

1883

Attounkt-
Genkral

Mkkokr.

Sui). C,
Canada.

Taschereau, J,

British Constitution, must be done in Her Majesty's name has to be
done by the Lieutenant-Govei-nors of the Provinces, under the B.
N. A. Act, they are authorized to do it in Her Majesty's name, and
are deemed then to act for Her Majesty, has not, that I remember,
been denied by the appellant. But they are not Her Majesty's
direct representatives*, as the Governor-Oeneral is. They have
never been considered a8 such by the Imperial authorities.

" Tlie Lieutenant-Governors of the Provinces of the Dominion,
however important locally their functions may be, are a part of the
colonial administrative staff, and are more immediately responsible
to the Governor-General in Council. They dc not hold commissions
from the Crown, and neither in power nor privilege resemble those
Governors, or even Lieutenant-Governors of colonies, to whom,
after special consideration of their personal fitness, the Queen, under
the great seal and her own hand and signet, delegates portions ot her
prerogatives and issues her own instructions," says the Earl of Car-
narvon in a despatch to Lord Duflferin, dated January 7th, 1875. (1)

That the Lieutenant-Governors are considered by the Imperial
[672] authorities as officers of the Dominion Government seems also
clear by the proceedings in the Letellier affair ; and the despatch of
Sir Michael Hicks-Beach to the Marquis of Lome on the subject,
dated July 3rd, 1879. (2)

Tlie following despatch of the Duke of Buckingham and Chandos
to Lord Monck; is written in the same view of the Lieutenant-
Governor's position :

"Downing Street, 19th October, 1868.

" My Lord, — 1 have under my consideration your Lordship's
despatch, No. 170, of the 9th September, submitting the question
whether the Lieutenant-Governors of the Provinces within the
Dominion of Canada are entitled to salutes from H. M. ships and
fortifications within their respective Provinces.

" I have the honour to acquaint you that under the circumstances

of the case, the Lieutenant-Governors of the Provinces holding their

commissions from the Governor-General will not be entitled to

salutes.

"I have the honour to be,

"etc., etc., etc.,

"(Signed) Buckingham and Chandos.

" The Viscount Monck. "

(1) Dominion Sesaional Papers, 1875, Vol. 8, No. 7, Sessional Paper 11, p. 38.

(2) Accounts and Papers, Imp. H. C, Vol. 51, p. 127, Session 1878, 1879.

PRIVY COUNCIL.

Attounkt-
Gknkhal

I'.
Mekoeii.

Sup. C,
Canada.

Another despatch from the Secretary of Statu for the Colonies, 1883

dated 7th November, 1872, though it recognises the Lieutenant-
Governors should be deemed to be acting directly on behalf of Her
Majesty on certain occasions, treats them on ordinary occasions, as
rt'iiresenting the Dominion Government.

, . " and with reference to the (juestion asked by Sir Hast-
ings Doyle, and submitted by Lord Li^^gar for ray decision, namely, Taschereau J.
' whether the Lieutenant-Governors iiro supposed to be acting on
behalf of the Queen,' I have to observe that, while from the nature
of their appointment they represent on ordinary occa'iona the
Dominion Government, there are, nevertheless, occasions (fv :h as
tlie opening or closing of a Session of the Provincial Legislature,
the celebration of Her Majesty's birthday, the holding of a levee,
etc., etc.) on which they shoidd be deemed to be acting directly on
behalf of Her Majesty, and the first part of the National Anthem
should be played in their presence, •

"(Signed,) Kimbekley."

[673] A reference to the order of precedence established for
Canada by Her Majesty phews that the Lieutenant-Governors do
not take rank and precedence immediately after the Governor-
General, but only after the general coniTnanding Her Majesty's
troops, and after the admiral connnunding Her Majesty's naval
forces on the British iTorth America station,

I do not cite these documents as conclusive evidence for a court
of justice, but as worthy of consideration, and to shew that the
Imperial authorities and Her Majesty herself consider the Lieu-
tenant-Governors as not generally representing the Sovereign.

However, as I have already stated, though the question has been
raised and argued at some length before us, I do not think it can,
in any manner, affect this case as I view it. As I have said, I fail
to see that the B. N. A. Act reserved or gave to the Provinces the
revenues arising from escheats. They consequently must belong to
the federal power, and upon this ground I am of opinion to allow
this appeal with costs,

I am glad to understand that it was agreed between the parties
that whatever should be the judgment of this Court on this ques-
tion, the case would be carried to the Privy Council. Though these
revenues from escheats must amount in fact to a trifle in each of the
Provinces, I think it but right for obvious reasons that the final and

PinVY COUNCIL.

1883

Attokney-
Gexhral

Merceu.

Sup. C,
Canada.

Taschereau, J,

authoritative determination of controversies on the construction of
the B. N. A. Act, which h an Imperial statute, should emanate from
an imperial judicial authority.

GWYNNE, J. : —

This case was argued before us as one raising a question of the
respective rights of tlie Dominion and Provincial authorities, and
as sucli we have had the advantage [074] of hearing a learned counsel
who appeared before us in the interest of the Province of Quebec,
as well as two learngd counsel who aj>peared in the interest of the
Province of Ontario on the one sitle, and, upon the other side, learned
counsel who appeared before us in the interest of tlie Dominion.

Tlie particular questio7i is, whether lands in the Province of
Ontario escheating to the Crown propter defectum sanguinis come
under the management, control and enjoyment of the Dt)minion or
of the Provincial authorities I This question, however, involves the
considcratit)n of all i)ropeity, both I'reehold and [tersonal, in the
several Provinces of the Dominion which escheats to the Crown,
and whether suclx escheat accrues propter defectum banguinis or
propter delictum tenentis, and the conclusion in both cases must be
the same.

Tlie learned counsel who ajipearod before us in the interest of the
Province of Quebec addressed to us an argument replete with ability
and research for the purpose of establisliing a position which he
took, namely, that the title which the Crown has to projjerty by es-
cheat is not derived from the feudal tenure, but from a mucli more
ancient law, namely, the old Roman law ; but from whatever source
derived nuitters not, for, whatever may be its origin, the learned
counsel admitted, as indeed he could not do otherwise, that whether
escheat in lantls be or be not a species of reversion, whether the
iitle accru(?s as a sort of cadiicary succession, the Sovereign taking
as ultimus lueres, whether it is of the nature of a title by purchase,
or by descent, or partakes of l)oth ; whether it accrues propter de-
fectum sanguinis or jnopter delictum tenentis ; whether, in short,
the escheated ])ro2jerty accrues as an incident to tenure or in virtue
of tlie prerogative royal, and wheth'^' vt be real or personal property
[675] whicli escheats, all pro^ arty escheating to the Sovereign does
so jure coronae. The question with which we have to deal is one
simply of the (construction of the B. N. A. Act, name' what dis-
position has that Act (which is the sole -charter by which the rights
claimed by the Dominion and the Pro\ iices respectively can be

PRIVY council:

determined) made of property escheating to the Crown ? and has it
made any distinction between property escheatinj^ propter defectum
sanguinis and that which escheats propter delictum tenentis ? In
construing this Act, however, it will be convenient to consider in
what manner, and iinder what designation or form of expression,
property of the description in question had been dealt with in prior
Acts of Parliament, and v.- hat was the precise condition in which
that particular species of pro2)erty was regarded to be and was, at
the tune of the passing of the B. N. A. Act. By so doing m u shall
obtain light to assist us in construing the latter Act.

In 1st Anne, c. 1, s. 5, jiroperty of this description is epoken of
a3 lands, tenements and liereditaments which may hereafter escheat
to Ilcr Majesty, her heirs and successors ; and to the end that the
land revenues of the Crown might be i)resorveil, improved and in-
creased for the best advantage thereof, it was enacted that no grant
sliould be made of any manors, lands, tenements, tithes, woods or
other hereditaments within the Kingdom of England, Dominion of
Wales or Town of Berwick-on-Tweed, then belonging or thereafter
Id belong to Her IMajesty, her heirs or successors, whether tho same
should be in right of the Crown of England, or as part of the Prin-
cipality of Wales, or of the Duchy or County Palatine of Lancaster,
(ir otherwise howsoever, unless for 31 years or tliree lives, etc.,
etc., etc.

[C7G] Sect. () made special provision as to buildings which, as they
nught require rei)aration, were allowed to be granted for 50 years
or three lives.

Sect. 7 made all other grants which should be made contrary to
the provisions of the Act to be void without any incjuisition or scire
facias. Provided always [s. 8] that the Act or anything therein con-
t.iined should not extend to disable Her Majesty, her hei';; or suc-
cessors, to make any grant or restitution of any estate ov estates
thereafter to be forfeited for any treason or felony whatsoever.

The 39 & 40 Geo. 3, c. 88, was an Act passed to remove doubts
whether real estate purchased by His Majesty out of his privy purse
was subject to the provisions of the above statute of 1st Anne, and
it declared that such lauds so purchased, or any other lands which
might accrue to Hi.s Majesty, his heirs or successors, by gift, or de-
vise, or by descent, or otherwise, from any of his ancestors, or any
other person not being a King or Queen of Great Britain, were not
aifected by the above Act, and it provided for the free disposition of
all such lands by Hia Majesty, his heirs and successors.

1883

Attornky-
Gkneral

Mercer.

Sup. C,
Canada,

G Wynne, J.

PRIVY COUNCIL.

1883

^^-^

Attounev-
Gkn'ekal

Merceh.

Sui). C,
Canada.

Gwynne, J,

By the 12th sect, of that Act it was enacted as follows :
' ' And whereas divers lands, tenements and hereditaments have
become and may hereafter become vested in His Majesty, his heirs
and successors, by escheat or otherwise, in right of tlie Crown,
which in the hands of any of His Majesty's subjects would be
chargeable with certain trusts, or ap2:)licable to certain purposes, and
His Majesty, his heirs or successors may be desirous that the same
sliould be applied accordingly, notwithstandirg any right which he
or thej^ may have to hold the same discharged from such trusts, or
witliout applying the same to such purposes, but by reason of the
provisions contained in the said Acts of the first year of her said
late Majesty Queen Anne and the thirty-fourth year of His Majestj''s
reign, doubts may be raised whether His Majesty, his heirs or suc-
cessors, can direct such application thereof ; and whereas divers
lands, tenements and hereditaments, as well freehold as copyhold,
have escheated and may escheat to His Majesty, Ids heirs or suc-
cessors, for want of heirs of the persons last seised thereof or entitled
[077] thereto, or by reason of st)me forfeiture or otherwise, althr^ugh
not forfeited for treason or felony, and it is expedient to enable His
Majesty to direct the execution of any such trusts or purposes as
aforesaid and to make any grants of any such nianorf, lands, tene-
ments or hereditaments as aforesaid notwithstanding the provisions
contained in tlie said recited Acts : Be it enacted that it shall be
lawful for His IMajesty, his heirs and successors, by warrant under
his or their sign manual to direct the execution of any trusts or
purjioses to which any manors, messuages, lands, tenements or
hereditaments which have escheated or shall escheat to His Majesty,
his heirs or successors shall have been liable at the time the same
so escheated respectively, or would liavo been liable in the hands of
any of Ilis Majesty's subjects, and to make any grants of such
manors, lands, tenements and hereditaments respectively to any
trustee or trustees or otherwise for the execution of such trusts, and
to make any grants of any lands, tenements or hereditaments which
have escheated or shall escheat as aforesaid to any person or persons,
either for the purpose of restoring the same to any of the family of
the person or persons whose estates the same had been, or of re-
warding any persons or person making discovery of any such es-
cheat, as to His Majesty, his heirs or successors respectively shall
Beem tit ; anything in the said Acta or any of them to the contrary
notwithstanding."

By 47 Geo. 3, c. 24, which was passed to explain and amend

PRIVY COUNCIL.

39 & 40 Geo. 3, c. 88, and to remove doubts which had been
raised whether the 12th section of that Act applietl to the Duchy of
Lancaster, tlie title of the Kings of Enghaml to which is separate
from the Crown of Enghand, (1) and grants of iuiids m which were,
liy a statute of Henry 5, valid only when executed under the seal
of the Duchy (2) it was enacted "that in all cases lu which His
Alajesty, his heirs or successors, hath or shall in riglit of his Crown
or of his Duchy of Lancaster become entitled to any freeli^)ld or
copyhold manors, messuages, lands, tenements or iKreditaments,
either by escheat for want of heirs, or by reason of any forfeiture, or
by reason tliat the same had been purchased by or for the use of or
[()78] in trust for any alien or aliens it shall be lawful for His
Majesty, his hei .s and successors, by warrant under his or their sign
manual, or under the seal of the Duchy or County Palatine of Lfin-
caster according to the title to such manors, messuages, lands," etc. ,
etc., to mpke grants thereof (as in 12th sect, of 39 & 40 Geo. 3,
c. 88V .'Uiyi;;ing in 1st Anne and 34 Geo. 3, c, 75, or any other
Act to tlie \. ,ntrary n(;twithstanding.

By 59 Geo. 3, c. 94, which was passed to explain and amend
3!) & 40 Geo, 3, c. 88, and 47 Geo. 3, c. 24, and to remove
doubts which had arisen in certain cases of grants by His Majesty
under the said recited Acts, it was enacted "that in all cases in which
His Majesty hath, or shall in right of his Crown, or of his Duchy of
Lancaster, become entitled to any freehold or copyhold manors, . .
. . . either by escheat for want of heirs, or by reas(JU of any f(.ir-
leiture, or by reason that the .same have been or shall be purchased
by or for the use of or in trust for any alien or aliens it shall he
lawful I'or His Majesty, his heirs and successors" (as in former Acts)
to make grants of such manors, etc., etc , or of any rents and profits
then due and in arrear to His Alajesty in resj'cct thereof respectively,
to any trustee, for the execution of any trufits or for the purpose of
restoring the same to any of the family of the person whose estate
the same had been, or for carrying into effect any intended grant, or
for rewarding discoverers, or to the families of aliens or other persons
unconditionally, or in consideration of money, -r to a trustee to
sell, and that the rents and purchase moneys to arise by any sale
should be applied in payment of any costs, charges and expenses
incident to any commission for finding the title of His Majesty, and
to the making of any such grant, and for carrying the same and the

1883

Attouney-
Gknfual

r.
Mkrceb.

Slip. C,
Ciiiiada.

Gwyime, J.

m ■

(1) See Duke v. Walford, 5 Moore, V. C. 434.

(2) See 17 Viner'« Abr. p. 73, E. b. 2.

PUIVY COUNCIL.

1883

Attorney -
GKNEKAL

Meucer.

Su]). 0.,
Canada.

Gwynne, J.

trusts thereof into execution, or in rewarding any person, or the
family of any per.sun making discoveiy of any such escheat, [679]
forfeiture, or purchase by an alien or of His Majesty's ri<5ht and
title thereto, or in discharging the whole or any part of the debts
due from an alien or any person whose estate or property, any 8uch
manors, messuago.s, etc., etc., have been ; or for the use or benefit,
in wliole or in part, of any .inch alien or of his family, or of any
person ado])ted by such alien or considered as part of his family, or
of any per.scm whose estate or property any such manors, etc., etc.,
have been, or his family ; or of any person adopted or considered })y
such person as part of his family, "or for all or any of the pui'poaes
aforesaid as to His Majesty, his heirs and successors, shall seem
fit ; and all grants heretofore made by His Maj jsty which would,
under the prijvisicjns of this Act, bo good are hereby declared to l)e
as good, valid and eiiectaal to all intents and purposes as if the same
had been made under the powers, provisions, and authorities of this
Act,'' notwithstanding anything to the contrary in any previous Act.

By the 3rd sect, it was enactt d,th<it in every case where any surplus
should remain of any moneys which should arise from any such sale
or s des, or which should be pai I under the authority of the Act by
any person, "after satisfying all such purposes as shall have been
ordered and directed by His Majesty, his heirs or successors, under
the provisions of this Act, shall bo paid to tlie Commiss'oners of
the land revenue for the time being, to be applied by tlieni in the
same way and manner as the money ari-ing frjm the sale of any
manors, messuages, lands, tenements, or hereditaments of or belong,
ing to His Majesty, his heirs or successors, is by the several Acts now
in force f' r the management and improvement of the land revenue
of the Crown or any of tliem, directed to be applied and disposed of. "

By the 14th sect, of Ist Geo. 4, c. 1, it was enacted, " that an
annual acct)unt of all moneys which shall or may hereafter arise and
be received for and in respect of any droits of Admiralty or droits
[GBO] of the Cnnvn, .... and from all surplus revenues of
Gibraltar, or any other possessions of His Majesty, out of the
Uniteil Kingdom, and from all other casual revenue or revenues,
whiither arising in or from any foreign possessions, or in the United
Kingdom, and of the application and dispositions of all such moneys
or revenues, shall be laid before Parliament on or before the 24th
day of March in each year, if Parliament shall be then sitting ; or,
if Parliament shall not be tlien sitting, then within 30 days after
the then next meeting of Parliament."

PllIVY COUNCIL.

been
under
[lers of
in the
f any
jlong-
:ts now
evenue
id of."
that an
ise and
droits
iivies of
of the
renues,
United
noneys
le 24th

ig ; or,
rs after

T3y 6 Geo. 4, c. 17, the provisions of 59 Geo. 3, c. 94, were
extended to leasehold lauds, etc., etc.. etc.

In 1829, 10 Geo. 4, c. 50, was passed. This was an Aot to con-
solidate and amend the laws relating to the management of the land
revenue of the Crown within England and Ireland, aiul by the 12(jth
sect, of that Act it w.as enacted that nothing in the Act should
extend, or be deemed or construed to extend, to repeal, interfere
with or in any manner affect, any of the powers and provisions of 39
& 40 Geo. 3, c. 88, or of 47 Geo. 3, c. 24, or of 59 Goo. 3, c. 94, or
of 6 Geo. 4, c. 17.

And by the 128th sect, it was enacted, " that nothing in this Act
contained shall extend, or be construed to extend, in any wise to
impair or affect any rights, or powers of control, managjment or
direction, which have been or may be exercised by authority of the
Crown, or other lawful warrant relative to any leases, grants, or
assurances of any of the small branches of His Majesty's hereditaiy
revenue, or to any suits or proceedings for recovering the same, or to
compositions made or to be made on account of any of the said small
branches, or to fines t?iken or to be taken, or to rents, boons and ser-
vices reserved or to be reserved upon such grants, leases and assvi-
rances, or to the mitigation or remission of the same, or to any ether
lawful act, matter or thing which has been or may be done touching
[681] the said branches, but that the said rights and powers shall
continue to be used, exercised and enjoyed in as full, free, ample and
effectual manner to all intents and purposes as if this Act had not
been made, and as the same had been or might have been enjoyed
by His Majesty up to the time of passing of this Act. . . ."

Froni this last section it appears to be clear that lands which
should escheat to the Crown, whether propter defectum sanguinis or
propter delictum tenentis, or which should become forfeited as pur-
chased to the use of or in trusi for an alien, were not, and were not
n-garded as being part of what were known as " the small branches
of His Majesty's hereditary revenue :" and that in parliamentary,
that is to say in statutory phraseology, this latter term did not com-
prehend revenue derived from such escheated or forfeited lands.
The law affecting lands accruing to the Crown by escheat and for-
feiture remained as appearing in the above recited Acts until the
accession of His Majesty King Wni. 4 to the throne in 1830. It
will be observed that the above Acts do not profess to affect any
personal chattel property escheating to the Crown which continued
to be at the absolute disposal of the Sovereign. It will be observed

Attouney-
Genehal

Meucer.

Sup. C,
Canada.

G Wynne, J.

1?";!]
ft''''

ft
: r,l ■

PRIVY COUNCIL.

1883

Attouxky-
Gknkual

r.
Meuceh.

Sup. C,
Canada.

Gwynne, J.

also, that the above recited Acts of 39 it 40 Geo. 3, 47 Geo. 3, 59 Geo,
3, and G Geo. 4, were not passed for the purpose of vesting in tlie
Crown rights in respect of lands accruing by escheat or forfeiture
which the Crown never had before had, but for the purpose of re-
moving the resti'aint which the provisions of 1st Anne had imposed,
or might be snpp(jsed to have imposed, upon the power of the CroAvn
over such lands which, but for tliat statute, would have beer abso-
lute. The eifect of the recited Acts was to .;ause to be paid over to
the commissioners of His Majesty's land revenues the surplus only
of the revenue which might be derived or arise from the sale of any
[fi82] such escheated or forfeited lands, after the full and free exer-
cise by the Crown of its prerogative right of disposing at pleasure
and ex si)eciali gratia of the whole of such lands, or of the proceeds
of the sale thereof, to all or any of the purposes mentioned in the
recited Acts ; they were, in fact, Acts passed for the purpose of
maintaining the prerogative right of the Crown of graciously
restoring such lands to persons who were, or who were considered
as being of, or adcjpted into, tlie family of the person whose estate
the property had been ; that gracious exercise of the Sovereign's
prerogative riglit those statutes maintained and preserved.

Whether the language of 39 & 4.0 Geo. 3, and of the subsequent
Acts in amendment thereof, extending as it did to " all oases in
which His Majesty, his heirs or successors, hath or shall in right of
his Crown become entitled by escheat, etc.," was sufhctent to
include lands in the colonies escheating to the Sovereign for the
time being in right of the Crown, is of no importance at the present
day, nor is it necessary for the purpose of this case to inquire and
determine, for from what I have already said, it follows, that if those
Acts did not apply to lands escheating to the Crown in the colonies
the prerogative right of the Crown over such lands to dispose of
them at pleasure, and consequently to tlie gracious purposes indi-
cated in the above recited Acts, remaijied absolute and unaflFected by
any Act of Parliament at the time of the accession of His Majesty
King Wm. 4 to the throne ; for the statute 1st Anne was confined
expressly in terms to England and Wales and the Town of Berwick-
on-Tweed, and no similar Act affecting the property belonging or
accruing in the colonies to the Sovereign jure corona) had been
passed.

I have named above the accession of his late Majesty King Wm.
4 to the throne as being the period when first any revenue derived
[083]^ from the casual source of property, whether real or personal,

PRIVY COUNCIL.

cscheatinp; to the Crown eitlier projiter defectum sanr,'uiiiis or propter
delictum teucntis, was surrendered by tlie Crown and was incor-
porated into and made part of the consolidated fund of the United
Kingdom.

Ey 1st Wm. 4, c. 25, r :v reciting among other things that His
Majesty had been graciously pleased to signify to His Majesty's
faithful Commons in Parliament assembled, that His Majesty placed
without reserve at their disposal His Majesty's interest in the here-
ditary revenues of the Crown and in tliose funds which may be
derived from any droits of the Crown or Admiralty— frc^m the West
India duties, or from any casual revenues either in His Majesty's
foreign possessions or in the United Kingdom, it was enacted "that
the produce of all tlie said hereditary rates, duties, payments and

revenues iu England and Ii'cland respectively, and

also the small branches of the hereditary revenue, and the produce
of the hereditary casual revenues arising from any droits of Admi-
ralty or droits of the Crown, . . . and from all surplus reve-
nues of Gibraltar, or any other possession of His Majesty out of the
United Kingdom, and from all other .aiiial revenues arising either
in the foreign possessions of His Majesty or iu the United Kingdom,
which have accrued since the decease of his said late Majesty, and
whicli shall not have been applied and. distributed in the payment
of any charge thereupon respectively, or which shall accrue during
the life of his present Majesty . . . shall be carried to and
made part of the consolidated fund of the United Kingdom of Great
Britain and Ireland ; and from and after the decease of his present
Majesty, ... all the said hereditary revenues . . . shall
be payable and paid to his heirs and successors" ; and by the 12th
clause it was enacted, "that nothing in this Act contained :shall
extend, or be construeil to extend, in any wise te impair, affect or
[G84] prejudice any rights or powers of conti'ol, management or
direction which have been or may be exercisevl by authority of the
Crown, or other lawful warrant, relative to any leases, grants or assu-
rances of any of the said small branches of His Majesty's hereditary
revenues, or to any suits or proceedings for recovery of the same,
. . . or to any other lawful act, matter or thing which has been,
or may be, done touching the said branches, or to the granting of
any droits of Admiralty or any droits ot the Crown, or any part or
proportion of any such droits respectively, as a reward or remune-
ration to any officer or officers, or other person or persons, seizing or
taking the same, or giving any information relating thereto, or to the

1883

Attounky-
Gknekal

Meiicek.

Sup. C,
Canada.

Gwynne, .J.

■i .

PRIVY COUNCIL.

1883

Attorney-
General

Mercer.

Sup. C,
Canada.

Gwynne, J.

granting, disposing of, or leasing any freehold or copyhold property,
or the produce, or any part of the produce, or amount, or value of,
any freehold or copyhold to which His Mtajesty, or any of his royal
predecessors, have, or hath, or shall becom-j entitled, either by
escheat for want of heirs, or ^y reason of any forfeiture, . . .
or to the granting or distributing of any personal property devolved
to the Crown by reason of the want of next of kin or personal
representative of any deceased person, but that the same risjihts
and powers shall continue to be used, exercised and enjoyed in as
full, free, ample and effectual a manner to all intents and purposes
as if this Act had not been made, and as the same have been or
might have been enjoyed by his said late Majesty George the Fourth
at the time of his decease, subject nevertheless to ail such res-
trictions and regulations as were in force by virtue of any Act
or Acts of Porliament in relation thereto at the time of the decease
of his said late Majesty, it being the true intent and meaning of
this Act that the said rights and powers shall not in any degree
be abridged, restrained, affected, or prejudiced in any manner
whatsoever, but only that the moneys accruing to the Crown, after
the full and free exercise and enjoyment of the said rights and
powers, subject as aforesaid, shall, during His Majesty's life be
[685] carried to and made part of the consolidated fund of the
United Kingdom."

Now it will be observed that from the passing of the above sta-
tute of Anne until the passing of this Act of 1st Wm. 4, that branch
of the revenues of the Crown which arose from escheated or for-
feited lands is never spoken of in any Act of Parliament under any
other designation or description than as the proceeds of lands
" which may hereafter escheat," or of lands '• wherein His Majesty
hath or hereafter shall become entitled in right of his Crown by
escheat or forfeiture. " Never in any Act is such property spoken
of or dealt with under the bald description of ' ' lands belonging to
His Majesty." A distinction also was in statutory phraseology
drawn between property known under the name of " the small
branches of His Majesty's revenue " and lands accruing to His Ma-
jesty by escheat or forfeiture. In 1st Wm. 4, c. 25, the revenues
arising from all lands and personal property devolving upon the
Sovereign in right of the Crown by escheat or forfeiture, as well as
all revenues arising from the " small branches" of his Crown reve-
nue, are dealt with under the name and designation " casual "
revenues of the Crown, and henceforth under this term "casua

PHIV^Y COUNCIL.

revunuea," tlio proceeds of all property, whether real or personal,
devolving upon the Crown by escheat, is dealt with by Parliament.

The language of this Act 1st Wni. 4, appears to be abundantly
ample to comprehend under its operati'jn tlie territorial and casual
revenues accruing to the Crown in the colonies, aud in tlie eonllict
which arose between the Ccdonial and Iiuperial authorities, for the
purposes of obtaining for the colonies control over those revenues,
certain of the Imperial autliorities from time to time <[uestioned the
[()8(!] competency of the Crown to assent to any bill passed by tlie
colonial assemblies affecting to deal with those revenues. In April,
1837, as appears by Mr. Forsyth's work intituled "Cases and Opi-
nions on Constitutional Law," p. 150, the then law officers of the
Crown in England, Sir John Campbell, afterwards Lord Campbell,
and Sir R. M. Rolfe, afterwards Lonl Cranworth, in answer to a
question submitted to theui by Lord Glenelg, then Colonial Mi-
nister : " Whether it is in point of law competent to His Majesty,
with the advice and consent of the Legislative Council and Assembly
of New Brunswick, to render the tracts of wild land in that colony
which belong to His Majesty jure coronso subject to the apjn-opria-
tion of the Legislature of the Province for a fixed period or in per-
petuity, in return for a civil list, to be settled on the Crown for a
similar term, or in perpetuity, as may be thought best I" — gave it
as their opinion that it was competent for His Majesty to make such
appropriation of his hereditary revenues in the colony of New
Brunswick.

The colony of New Brunswick possessed a constitution, not
created by Act of the Imperial Parliament, as that of Lower and
Upper Canada was, but created from time to time by the Kings of
England in the exercise of their royal prerogative, the legislative
authority in which, as in the Imperial Parliament, consisted of the
Sovereign, acting with the advice and consent of a Legislative
Council and Assembly, the limits of jurisdiction of such legislature
not being prescribed by any written charter. Accordingly, in p\u'-
suance of this opinion and in the month of July, 1837, an Act
framed upon the model of the Imperial Act, 1st Wm. 4, and pre-
pared in England, was passed by the Legislature of New Brunswick,
8 Wm. 4, c. 1, whereby after reciting that "his most gracious Ma-
jesty had been pleased to signify to his faithful Commons of New
[087j Brunswick, that His Majesty will surrender up to their con-
trol and disposal the proceeds of all His Majesty's hereditary, ter-
ritorial and casual revenues, and of all His Majesty's woods, mines

1883

ArroHNET-

Genkual

MKIit'KK.

Sup. C,
Canada

G Wynne, J.

PlilVY COUNCIL.

1883

Attounkv-
Gknichai.

I.
Mkiu'kk.

Ku|). C,
Canada.

Gwyniio.J.

ami royalties, now in hand, or which may hereafter during the con-
tinuance of this Act be collected in this Province, on a sufficient
sum boiuL' secured to His Majesty, liis heirs and successors, for tlie
support of the Civil Government in this Province," — it was enacted
"that the proceeds of all and every the said hereditary, territorial
and casual revenues, and tlie proceeds of all sales and leases of
Crown lands, woods, mines and royalties, which have been collected
and are now iu hand, or which shall be collected hereafter, during
the continuance of tlii.s Act, (except the moneys which shall be
expended in the collection and protection thereof, as specially autho-
rized and provided for by the 4th sect, of this Act,) shall imme-
diately be payable and paid to the Provincial Treasurer, who is
hereby authorized to receive the same for the use of this Prcn'ince ;
and from and after tl.e expiration of this Act, the proceeds of all
the said hereditary, territorial and casual revenues, and of the said
lands, woods, niine^ and royalties, shall revert to and be payable
and i)aid to his said Majesty, his heirs and successors." The Act
then granted a civil list of £14,500 per annum, for ten years, from
31st December, 183(i, when the Act shoidd expire.

The 4th sect, above referred to {irovided for the payment of the
expenses of management out of the gross revenues, and by the Gth
sect, it was among other things enacted that nothing in the Act
contained should extend or be construed to extend in any wise "to
disable His Majesty, his heirs and successors, to nuike any grant or
restitution of any estate or estates, or of the produce thereof, to
which His Majesty hath or shall become entitled by escheat for
want of heirs, or by reason of any forfeiture, or by reason of the
same having been purchased by or for the use of any alien, or to
[U88] make any grant or distribution of aiiy personal propei'ty
devolved to the Crown by reason of the want of next of kin or per-
sonal representatives of any deceased person, and that the said
rights and powers shall continue to be used, exeicised and enjoyed
in as full, free, ample and effectual manner to all intents and pur-
poses as if this Act had not been made, and as the same have or
might have been heretofore enjoyed by the Crown, subject never-
theless to the restrictions and regulations hereinbefore made and
provided ; it being the true intent and meaning of this Act that the
said rights and powers shall not be in any degree abridged or res-
trained, or affected in any manner whatsoever, but only that the
moneys arising fnnn the full and free exercise and enjoyment of
them, so subject as aforesaid, shall, during the continuance of this

I'HIVY COUNCIL.

Act, bo carried to ami made part of the joint stock reveniius at
the dia|)osal of the General Assembly of this Province."

The provisions of this Act were ro-enacted and made perpetual
by Revised Statutes of N. B., title 3, c. 5.

The connection in whicli the words "Crown lands, woods, mines
and royalties " are used in tliis Act plainly sliews that under tliese
words is meant to be designated wliolly dillerent j)roj)erty from any
accruing to the Crown by reason of escheat or forfeiture, and that
the word "royalties" is intended to describe and cover merely
mcmeys, or part of the produce of mines, arising from lease or other
disposition of mines. Upon the accession of lier pn^sent Majesty
tlie Act 1 it 2 Vict., c. 7, was passed, which is identical in its terms
with 1st Wm. 4, c. 25.

That the Imperial Parliament, at the time of the reunion of the
Provinces of Lower and Upper Canada, was determined not to vest
ill the Legislature of United Canada tlie same j)ower and control
over the Crown revenues in the Province as the law officers of the
Crown, liad, in April, 1837, i)ronounced to be vested in the Legis-
[(i3!>] lature of New Brunswick, appears from the constitutional
Act 3 & 4 Vict., c. 35. For the Imperial Parliament by that Act
itself constituted a Consolidated Fund and a Civil List for the Pro-
vince of United Canada, and made a special disposition of the reve-
nues at the disposal of the Crown, and restrained the Crown from
assenting to any bill passed by the Legislative Council and Assem-
bly, which should in any minner relate to or affect Her Majesty's
prerijgative toucliing the granting of waste lands of the Crown
within the Province, until 30 days after the same should have been
laid before both Houses of the Imperial Parliament, or in case
either of the said Houses of Parliament should within the said 30 days
address Her Majesty to withhold her assent from any such bill.
The clauses providing for a Civil List, namely, the 52nd and 54th,
enacted that out of the consolidated revenue fund there should be
payable permanently to Her Majesty, her heirs and successors,
^45,000 for defraying tlie salaries of the Governor, Lieut. -Governor,
and of the Judges, and Attorney and Solicitor-General, and the
expense of the administration of justice, and during the life of Her
Majesty, and for five years after the demise of ller Majesty, a fur-
ther sum of £30,000 for defraying the expenses of the civil govern-
ment ; and that during the time for which the said several sums
were payable the same should be accepted and taken by Her Ma-
jesty, by way of Civil List, instead of all territorial and other reve-

1883
Attounkt-

(iKNKKAI.
('.

Mekckr.

Sup. C,
Canada.

(jwj'une, J.

if.

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PRIVY COUNCIL.

1883

Attorney-
General

f.
Mercer.

Sup. C,
Canada.

Gwynne, J.

nues now at the disposal of the Crown arising in either of the said
Provinces of Upper Canada or Lower Canada, or in the Province of
Canafla, and that three-fifths of the net produce of the said terri-
torial and other revenues now at tlie disposal of the Crown within
the Province of Canada should be paid over to the account of the
said consolidated revenue fund, and also during the life of Her
Majesty, and for five years after the demise of Her Majesty, the
[690] leniaining two-fifths of the net produce of the said terri-
torial and other revenues should also be paid over in like manner to
the account of the same fund.

The Legislative Assembly of the Province persisted still in
I ndeavouring to procure the recognition of the principle for which
they contended, namely, that the colonial Legislature should exer-
cise the like control over the territorial and casual revenues of the
Crown arising in the Province as was exercised by the Imperial Par-
liament over the like revenues arising within the United Kingdom.
Accordingly, in 1846, a bill passed the Legislative Assembly and
the Legislative Council of the Province which, as coming within
the provision of the Act of Union, was transmitted to England for
tlie purpose of being laid, and was laid, upon the table of both
Houses of the Imperial Parliament.

By this bill, it wis recited, among other things, as follows :
" Whereas your Majesty has l)een most graciously pleased to declare
to your faithful (Janadian Commons, in Provincial Parliament assem-
bled, your Majesty's gracious desire to owe to the spontaneous libe-
rality of your Canadian people such grant, by way of Civil List, as
Khali be suflicient to give stability and security to the great civil
institutions of the Province, and to provide for the adequate remu-
neration of able and efficient officers, in the executive, judicial and
other departments of your Majesty's public provincial service, the
granting of which Civil List constitutionally belongs only to your
Majesty's faithful Canadian peojjle in their Provincial Parliament."

The bill provided for the estiablishment of a consolidated revenue
fund for the Province of Canaila, in tlie same terms as had been
p-.ovided by the 50th sect, of 3 & 4 Vict., c. 35. It then charged
ui)on tliat consolidated fund permanently a sum not exceeding
£34,638 I5s. 4d. cy., in lieu of the £46,000 by the 52nd sect, of
3 it 4 Vict, provided, and during the life of Her Majesty, and for
five years after the demise of Her Majesty, a sum, not exceeding
[601] £39,245 IGs. cy., in lieu of £30,000 by the 54th sect, pro-
vided ; aitd after making provision for alteration in the salariea

PllIVY COUNCIL.

to be attached to certain offices, it enacted that : " During the time
for which the said several sums mentioned in the said schedules are
severally payable, the same shall be accepted and taken by Her
Majesty, by way of Civil List instead of all territorial and other
revenues now at the disposal of the Crown, arising in this Province ;
and that three-fifths of the net produce of the said territoi'ial and
other revenues, now at the disposal of the Crown, within this Pro-
vince, shall be paid over to the account of the said consolidated
revenue fund ; and also that during the life of Pier Majesty, and
for five years after the demise of Her Majesty, the remaining two-
fifths of the net produce of the said territorial and other revenues
now at the disposal of the Crown within this Province, shall also be
paid over in like manner to the account of the said consolidated
revenue fund."

By the Imperial Act 10 it 11 Viet., c. 71, Her Majesty was au-
thorized, witii the assent of her I'rivy Council, to assent to the
above bill, and it was enacted that if Her Majesty, with the advice
of her Privy Council, should assent thereto, then the clauses num-
bered respectively 50 to 57, both inclusive, of 3 & 4 Vict., c. 35,
should be rei)ealed upon and from the day on which the said
reserved bill (being first so assented to by Her Majesty in Council)
should take eliect in the Province. The bill was subsecjuently
assented to and became an Act, 9 Vict., c. 114, of the Provincial
Legislature.

Tiie object of the 1 rovincial authorities in procuring the passage
of this bill, and the royal assent thereto, as an Act of the Provincial
Legislature, was to obtain the recognition of the principle so long
contended for, and which is set out in the above extract from the
]ireamble, namely, that the Crown should owe the Provincial Civil
List to the Provincial Commons, iind that in return therefor the
Crown should surrender to tlie Prt)vincial Legislature the same con-
trol and management of the territinial und casual revenues accruing
to tlie Crown within the Province as was exercised and enjoyed by
[(i92J tlie Imperial Parliament over the like revenues arising
within the United Kingdom. To have greater control was never
contended for. We can tliorefore, I tliink, alHrm with great con-
fidence that by the passing of the bill into an Act the Load Legis-
lature never contemplated obtaining, nor, by authorizing the Royal
assent to be given to it, did the Imperial Parliament contemplate
conferring on the Provincial Legislature, any greater control over,
or interest in, the revenues arising from property devolving upon

1883

Attorney-
General

Mercer.

Sup. C,
Canada.

Gwynne, J,

PRIVY COUNCIL.

1883

Attounev-
Genkkal

V.
MnUCER.

Sup. C,
Canada.

Gwyiine, J.

HI I

tho Crown by escheat or forfeiture, than was exerci.-*ecl and enjoyed
in Enghmd by the Iinpcrial Parliament over the like revenues there,
under the 12th sect, of Ist Win. 4, c. 25, and 1 «fc 2 Vict., c. 2, by
which tho jurisdiction was limited to the 8uri)lu8 or " net pro-
ceeds," as they are called in the Canadian Act, and in 3 & 4 Vict.,
c. 35, of those revenues, after the full and free exercise by Her
Majesty of her royal prerogative of grace and bounty, as expressed
in those sections ; and yet it is certainly true that no section similar
to the 12th sect, of the above Imperial Acts is inserted in 3 & 4
Vict., c. 35, or in the Canadian Act. This latter Act, however (if
the question of Her Majesty's right to have exercised in Canada
such her royal prerogative of grace and bounty after the passing of
that Act at the time of the passing of the B. N. A. Act, should be
material to the determination of the question now before us), will
have to be read in tho light of three Imperial statutes subsequeiitly
passed, viz., 15 & 16 Vict., c. 30, 17 & 18 Vict., c. 118, and 28 &
29 Vict., c. 03. The same observation may be applied to the Aci. of
the Legislature of Nova Scotia, passed in the year 1849, by which
the territorial and casual revenues of the Crown aiising in that Pro-
vince were surrendered to the Provincial Legislature. That Act,
which appears to have been drafted by a draftsman of a peculiarly
[693] and indeed of an excessively cautious cast of mind, after
providing for the surrender of all moneys arising from the Crown
lands, mines, minerals or royalties of Her Majesty within the Pro-
vince, proceeds to enact, so as !o make assurance doubly sure, that
" so soon as this Act shall come into operation, all the right and title
of Her Jfajesty, whether in reversion or otherwise, of, in, to and out
of all and singular the mines of gold, silver, coal, iron, ironstone,
limestone, slatesfone, slaterock, tin, copper, lead and all other mines
and minerals and ores within this Province, which by indenture of
lease, bearing date on or about the 26th day of August, in the year
of Our Lord, 182(5, were granted, demised and leised by or on the
part of liis late Majesty King Geo. 4, to his late royal brother the
Duke of York, for the term of CO years, at and under certain rents
and renders therein contained, ns by reference to 'he said lease wil
at large appear, and also all rents and arrears of rent and returns
due or to become or grow due by virtue of the said lease, with all
powers, rights and authorities, whether of entry for forfeitures, or
breach of coiulition or otherwise in the said lease reserved or con-
tained, in respect of the breach of any condition thereof, and also all
the estate, right and title of Her Majesty, reversionary or otherwise

PRIVY COUNCIL.

of, in and to all such coal mines in the Island of Cape Breton, and
to all such reserved mines at Pictou which were aj^reed to be leased
and demised by his said late Majesty for the yearly rent of £3,000
sterling . . , and which said mines, under such agreement,
are in possession of, and were or are now in operation and worked
by or for a certain company called the General Mining Association,
and likewise the said yearly rent of £3,000 sterling, and all other
rents and reservations by the said agreement reserved or payable,
. . . . and also all mines of gold, silver, iron, coal, ironstone,
limestone, slatestone, slaterock, tin, copper, lead and all other mines,
minerals and ores within this Province, including the Island of
Cape Breton, of which the title is now in Hor Majesty, shall be,
and the said several enumerated premises are hereby respectively
assigned, transferred and surrendered to the disposal of the General
Assembly of this Province .... to and for such public uses
[604] and purposes as in and by any Act of the General Asser ^ly
for the time being shall be ordered and directed."

For the purpose of giving effect to this Act, two Acts were sub-
sequently passed by the General Assembly of the Province, the one
to be found in the second series of the Revised Statutes of Nova
Scotia, chapter 27, intituled " Of the Coal Mines," and the other in
the third series of the Revised Statutes, chap. 25, intituled "Of
Mines and Minerals," in both of which the Legislature of Nova
Scotia shews its understanding of the term " roy.alties " to be that
which is ordinarily attached to it. By the 23rd sect, of the former Act
it is enacted that, " the royalties reserved under imy lease gr.mted
in pursuance of this chapter shall not be less than those now paid by
any party holding a lease under the Crown of any mines or minerals
in this Province," and by the 47th sect, of the latter Act it is enacted
that "on all leases of gold mines and prospecting licenses to search
for gold there shall be reserve i a royalty of three percent, upon the
gross amount of gold mined," by the 55th sect, that "each licensed
millowner shall separate from the yield or produce of gold of each
lot or p trcel of quartz as crushed, three parts out of every hundred
parts of such yield hs the portion thereof belonging and payable to
Her Mitjesty ns royalty."

By sect. 69, " The lessee of each mine shall be liable for royalty,
upon all gold obtained from his mine in any other way thpn from
quartz crushed at licensed mills, but he sIihU bo exempted from any
claim in respect of gold obtained from quartz so crushed, the
liability of the millowner for such royalty being hereby substituted

1883

Attorney-
Geneual

Mercer.

Sup. C,
Canada.

G Wynne, J.

*7^

I'RIVy COUNCIL.

1883

Attorsey-
Genkual

r.
Meuceu.

Sup. C,
Canndii.

Gwj'iine, J.

instead of that of the lossco ;" and by sect. 102, " All licenses and
leases of mines and minerals, other than gold mines, shall be snbject
[GJ)5] to the following royalties to the Crown, to the use of the
Province on the produce thereof, after it has been brought into
marketolde condition, payable yearly from the period of their re-
spective datas; that is to say, of live per cent, on all such ores
and minerals, except gold, iron and coal ; of eight cento on every
ton of iron and of ten cents on eveiy ton of 2,240 lbs. of co-il,
which said royalties shall be paid to such person or persons at such
times and in such pi ices as the licenses or leases shall respectively
stipulate, or as the Governor in Council may from time to time direct. "
By the Imperi'il Act 15 & 10 Vict. c. 39, after reciting 1st Wm.
4, c. 25, s. 2, and 1st Vict., o. 2, s. 2, and that from the time of the
passing of the said Act of 1st W.ii. 4, " the lands of the Crown in
the colonies (save where special provision has been made in re-
lation thereto by other Ai;ts of Parliament) hive been hitherto
granted and disposed of, and the moncj's ar.sing from the sime,
whether on sales or otherwise, have been appropriated by or under
the authority of the Crown and by and under the authority of
the Legislatures of the several colonies, as if the said Acts of the
fir-st year of King William the Fourth and of the first year of
her present Majesty had not been passed ; and whereas doubts
have arisen whether the moneys arising as aforesiid in the said
colonies may not be considered hereditary casual revenues within
the meaning of the said Acts, and whether all or any part of other
revenues arising within the said colonies, and being hereditary
casual revenues within the meaning of t' e s:iid Acts, may bo 1 iw fully
approi)riated to j)ublic purposes for the benefit of the colonies
within which they may h we respectively oriseu ;" and to remove
such doubts, it was enacted that:

1. "The i>rovisions of the said recited Acts in relation to the
hereditary casual revenues of the Crown shall not extend or be
deemed to have extended to the moneys arising from the sale or
other disposition of the lands of the Crown in any of Her Majesty's
colonies or foreign possessions, nor in any wise invalidate or
[696] atfect any sale or other disposition already mide or here-
after to be mnde of such lands or any appropriition of the moneys
arising from any such sale, or other disposition which might have
been lawfully made if such Acts or either of them had not been
passed.

2. " Nothing in the said recited Acts contained shall extend or

PRIVY COUNCIL.

t)0 deemed to liave extended to prevent any appropriation which,
if tlio said Acts liiid not been passed, might have been hiwfully
made by or with the assent of the Crown of any casual revenues
arising within the colonies or foreign possessions of the Crown
(otlior than droits of the Crown and droits of Admiralty) for or
towards any public purposes within the colonies or possessions
•in which the same respectively may have iiriscn : provided always
that the surplus not applied to such public purposes of stich here-
ditary casual revenues sha'l be carried to and form jjart of the s dd
oonsolidated fund."

From the debate which took plac3 in Parliament at the time of
tlie passing of this Act, its object appears to have been to au-
thorize the appropriation to colonial purposes of the Crown reve-
nues in the colonies arising from waste lands or from mineral
treasures, which the Acts of 1st Wm. 4 and Jst Vict, were regarded
fls appropriating to the consolidated fund of the United Kingdom
and ^o contirm the appropriations which had then already been made
of I hose revenues by Acts of the colonial Legislatures, and to make
the above named Impeiial Acts apply only to directing the appro-
priation to the consolidated fund of the United Kingdom of any
surplus remaining after the apidication of whatever might be neces-
sary for the advantage of the colony. What surplus there was
expected to be a'ter the appropriation by the colonial Legislatures
of what they should, by Act of Parlisiment assented to by the Crown,
declare to be necessary to be expend'id lor the benefit of the colony,
it is tiifficult to understand ; but the Act expressly declares tliat
such moneys arising from such revenues as shall not be applied to
the public purposes of the colony shall be carried to and I'urm part
of the consolidated fund of the United Kingdom. The Acts of 1st
[0!)7] Wm. 4 and It Vict, being by this Act held to apply so far
t) such surplus moneys arising from the surrendered Crown reve-
nues within the colonies, it would seem but reast)nable to hold that
the proviso in tlie 12th sect, of those Acts which saves to the Crown
the exercise of its prerogative royal of grace and bounty should
api)ly also if the question was w^liether the Crown did or did not
possess that prerogative right in Canada immediately before the
l)assing of the B. N. A. Act. There are, moreover, two colonial Acts
of those referred to in the preamble of 15 & 16 Vict., c. 39, as dis-
poning of the lands of the Crown in the colonies notwithstanding
1st Wm. 4 and 1st Vict., which it will be proper to refer to in this
connection, namely, 4 »& 5 Vict., c. 100, and 12 Vict., c. 31, of tbe

1883
ArroitNEY-

GKXlilt.VL

I'.
Meuckb.

Sup. C,
Canada.

Gwynue, J.

PRIVY COUNCIL.

1883

Attounkt-
Gengual

?'.
Merceu.

Sup. C,
Canada.

Gwynne, J.

Acts of the Lc|,'is]ature of Canada (I). By the former of these
Acts, intituled "An Act i'or the disposal of Public Lands," after
reciting that it was "expedient to provide by a law applicable to all
parts of this Province for the disposal of public lands therein," it
wa« in the 2nd sect, enacted, that, except as thereinafter provided,
" no free grant of public land shall be made to any person or per-
sons whomsoever," and by the latter, after reciting that it was expe-
dient to amend and extend the provisions of the former Act, " as well
as to remove certain doubts which have arisen as to the intent and
meaning of some of the provisions of the said Act ; and whereas by
the 2nd sect, of the said Act it is enacted, that, with certain excep-
tions thereinafter provided, no free grants of public land shall be
made to any person or persons whatsoever; and whereas doubts
have been entertained whether the same does not preclude Her
Majesty from the exercise of her royal grace in the relinquishment
of her rights to escheats and forfeitures in favour of those near of
kin, or otherwise connected with the parties last seised thereof , and
[698J it is expedient to remove all such doubts," it was declared
and enacted " that the 2nd section of the said Act extends and
shall be deemed to have at all times extended to such lands only as
no patent deed hcd ever issued for, and not to such as having been
once granted by letters patent had subsequently become vested in
Her Majesty either by act of the party or by operation of law. "

We have here a plain definition of the term " public lands " of
the Province as understood by the Legislature, a term which has
ever since been used and understood in the same sense ; and from
the preamble to this Act we can gather that the same Legislatare
which recited as a reason for passing it that it was desirable to
remove doubts which had been entertained whether the 2nd sect,
of 4 it 5 Vict., c. 100, did not preclude Her Majesty from the exer-
cise of her royal grace in the relinquishment of her rights to escheats
and forfeitures in favour of those near of kin or otherwise con-
nected with the parties Lifet seised could never have intended, by
the Act of 9 Vict., c. 114, to preclude Her Majesty from- the like
exercise of her royal grace ; this Act, in fact, seems to involve a
recognition of the right of Her Majesty to exercise such right in
the case of lands become escheated or forfeited in Canada. By the

(1) [The Acta 4 & 5 Vict., c. 100
and 12 Vict., c. 31, were repealed by
16 Vict, c. 159, B. 1. The Act 16
Vict., c. 159, is consolidated in Con.

Stat. C, c. 22. The provisions of
12 Vict., c. 31, here referred to, were
not re-enacted either in 16 Vict., c.
159, or in the Con. Stat., c. 22.]

PRIVY COITN'CIL.

Gth sect, of 17 & 18 Vict., c. 118, winch was an Act passed to
empower the Lej,'i8liituro of Canada to alter the constitution of the
Legislative Council (»f that Province, the restraint imposed upon
the Legislature of Canada, by the 42nd sect, of 3 iV: 4 Vict., c. 35, was
removed, tliat section was repealed, and it was enacted, notwith-
standing anythijig in 3 it 4 Vict., c. 33, or in any other Act of Par-
liament contaimd, it shovdd be lawful for the Governor to declare
that he assents to any bill of the Legislature of Canada or for Her
Majesty to absent to any such bill if reserved for the signification of
[G99] Her Majesty's pleasure thereon, although such bill " shall not
have been laid before the saifl Houses of Parliament ; and no Act
heretofore passed or to Ije passed by the Legishiture of Canada shall
be held invalid or ineflVctual by reason of the same not having been
laid before the sai«l House;*, or by reason of the Legislative Council
and Assembly not having presented to the Governor such address
as by the said Act of Parliament ia required."

By 28 & 29 Vict., c. 63, s. 2, intituled " An Act to remove doubts
as to the validity of Colonial Laws," it was enacted that, —

" Any colonial law which is or shall be in any respect repugnant
to the provisions of any Act of Parliament extending to the colony
to which .such law may relate, or repugnant to any order or regula-
tion made under authority of such Act of Parliament, or having in
the colony the force and effect of such Act, shall be read subject to
such Act, order, or regulation, and shall, to the extent of such
repugnancy, V>ut not otherwise, be and remain absolutely void and
inoperative."

We find then, that immediately preceding the passing of the
B. N. A. Act, all Acts of Parliament dealing with this subject, from
Ist Wm. 4, dealt with it as forming part of the hereditary casual
revenues of the Crown within the colonies which had been surren-
dered by the Crown provisionally in return for a civil list, in whicli
revenues the Crown retained a reversii nary interest, after tlio
times named during which the civil lists contracted fi>r were granted.
We find also that the statute of the Legislature of New Brunswick,
which had dealt with the subject, specially reserved to the Crown
the prerogative right of exercising the royal grace and bounty by
making any grant or restitution of any property, real or personal,
or the produce thereof to which the Crown should become entitled
[700] by escheat for want of heirs or next of kin, oj by reason
of any forfeiture as Ist Wm. 4 and Ist Vict, had done in England,
and the first position taken by Mr. McDougall in his very able

1883

Attornky-
Genehal

Meucer.

Sup. C,
Canada.

Gwynne, J,

-i

PlIIVY COUNCIL.

1883

Attoiinkv-
Gknkkal

r.
Meucku.

Sup. C,
Canada.

Gwynne, J.

aiguiiujiit, as I understood it, was, lliat the effect of that Act, as
well as of sovoral of the Iiu]>urial Acts aV)ovo cited, was to maintain
inviolate to the Crown the same exercise of the royal grace and
liounty in respect of property devolving upon tlie Crown by
esclieat and forfeiture in Canada and Nova Scotia; the conclusion
drawn being that the power of appropriation of the Legislatures
of the old Provinces prior to confederation is to be regarded as
affecting only so much, if any, of such revenues as should remain
after the full and free exercise by the Crown of its prerogative
right of makinj? grant and restitution of all escheated or forfeited
property or of the produce thereof (after deducting the expenses
attending finding the property of the Crown) to any person having
claims upon the person whose estate the escheated or forfeited
property was ; and that since confederation tlio exercise of such
prerogative right cainiot be interfered with by any Provincial
authority, or by Provincial legislation, liut tlie ([uestion, as it
appeai-8 to me, is not whether before the passing of the B. N. A.
Act, the Crown did or did not retain the royal prerogative right
within the Provinces of Canada, Nova Scotia and New Brunswick,
but had the several Legislatures of tliose Provinces power of ap-
propriation over escheated and forfeited property within these re-
spective Provinces — that is to say, iu other words, could the Queen,
by and with the advice and consent of the Legislative Councils
and Houses of Assembly of those respective Provinces, liave made
any appropriation of those revenues as .should seem fit to them,
although different from what appropriation had already been made
by legislation over such revenues accruing within those Provinces
[701] respectively ? And I think that in view of the long con-
tention maintained by the Legislative Assembly of Canada upon
the subject, which is so empathically asserted in the preamble of
the Canada Statute 9 Vict., c. 114, which had been assented to by
Her Majesty upon the authority of the Act of the Imperial Par-
liament specially passed for that purpose, the jiosition asserted in
the preamble of the Canada statute must be taken to be admitted
by the Imperial Act passed to give it effect, and in view of the
provisions of 17 & 18 Vict,, c. 118, and in view also of the practice
which had become engrafted upon the colonial constitutions with the
sanction of the Imperial Parliament, it cannot, I think, now be
questioned, that the respective Legislatures of Canada, Nova Scotia
and New Brunswick, that is to say, Her Majesty, by and with the
advice and consent of the Legislative Councils and Houses of

PUIVY COUNCIL.

AsBeiably of those rospectivo Provinces, liad before the pnssinj;^ of
tiio B. N. A, Act power of iippropriiition over ftll the tei*ritorial
an<l casual reveiuios of the Crown accruing within those respeclivo
Provinces, whatever may have boon contemplated hy tlie ecjuivocal
nseivation of the very c<mtingent surftlus wliich the Imperial
statute, 15 & 1(5 Vict., c. 3!), intendeil to appropriate to, and make
part of the consolidated fund of tlie United Kingdom.

Now, tliat the B. N. A. Act places under the absolute sovereign
control of the Dominion Pri'liamont all matters of every descrii)tion
not by the Act in precise terms exclusively aHsigne<l to the Legis-
latures of the Provinces, which by the 5th sect, of the Act are
carved out of and subordinated to the Dominion, cannot, in my
judgment, admit of a doubt. It was admitted by the learned coun-
sel who represented the Provinces in the argument before us,
that this was true with respect to all matters of legislation, but
[702] it was contended that when the Act deals with "property"
the rule was inverted, and that the Provinces take "all pro-
perty " not by the Act in precise terms given to the Dominion.

The sole foundation for this contention appears to me to be
based upon an assumption which in my judgment is altogether
erroneous, namely, that the B. N. A. Act transfers as it were the
legal estate in the Crown property from the Crown, and vests it
in the Dominion and the Provinces respectively as corporations
capable of holding property, real and personal, to them, their suc-
cessors and assigns for ever ; but the Act contemplates no such
thing ; its design as to " properties " as to everything else which
is appropriated to the use of the Provinces, and therefore placed
under the legislative control of the Provincial Legislatures, is to
specify those properties which being still as before vested in the
Crown, shall be under the exclusive control of the Provincial Legis-
latures. And so likewise with respect to the properties assigned
for the purposes of the Dominion, control and management over
property vested in the Crown for public puiposes is what the Act
deals with, not with the legal estate in such properties, divesting
the Crown thereof and transferring the legal estate in some to the
Provinces and in some to the Dominion as corporations, and indeed"
what we are called to adjudicate upon is a question directly affect-
ing the legislative jurisdiction of the Provinces, namely, is or
is not the Act of the Legislature of Ontario, which professes to
deal with the property in question, which is admitted to have devol-
ved upon Her Majesty jure corona) by escheat, ultra vires of the
Provincial Legislature?

1883

Attoknky-

GKNKIlAIi ■
V.

Mkkcku.

Sup. C,
Cunuda.

G Wynne, J.

98^

•8

PRIVY COUNCIL.

1S83

Attoknky-
(Jkxkuai.

I'.

Mkuceh.

Sup. C,
Canada.

Gwynne, J.

Nuithur can it admit of a doubt, as it appears tu me, that the juris-
diction which U expressly given t(» tiie Provinces by the 12th item
[7(>:i] of sect. !»2 of tlie Act over " property and civil rights in the
Province," can have no bearing wliatever upon the question bef(jre
us for, 1st, the pro}>erty with whicli we have to deal is, unless the
B. N. A. Act by clear enactment makes it otherwise, property accru-
ing to Her Majesty jure cornnro, it therefore cannot be taken from
the Crown except by express enactment. These words, therefore,
" property and civil rij^hts in the Province," cannot affect the prop-
erty of Her Majesty. Wo nmst seek, therefore, in some other
clause of the Act for authority to all'ect this property ; and secondly,
these words liave no effect whatever to restrain the jurisdiction of
the Dominion Parliament over property and civil rights in all the
Provinces, in so far as any of the matters comprised in the enumer-
ation of subjects in sect. 91 of the Act requires control over "prop-
erty and civil rights in the Province." Those words therefore
must be construed as conferring upon the Provinces jurisdiction
only over the residuum of property and civil rights in the Prov-
inces, not absorbed by the jurisdiction over that matter involved
in the complete and siijireme control over the matters specially
placed under the C(jnti<jl of the Dominion Parliament. Now,
among the items so placed we lind " the public debt and property"
specially mentioned in the first item of sect. 91, and for payment
of the public debt it is to be observed that the consolidated fund
of the respective old Provinces of Canada, Nova Scotia and New
Brunswick (created by the B. N. A. Act the Dominion of Canada)
had been formed, and in this fund and as part thereof, as the "public
property" appropriated to meet the public debt, was comprehended,
as we have seen, the casual revenues of the Crown accruing within
the respective Provinces, in which cjisual revenues, as we have also
seen, was comprised all property real and personal devolving upon
[704] Her Majesty jure coronjs within the Provinces, whether
propter defectum sanguinis or propter delictum tenentis. Now, of
this jiroperty so forming part of the revenues constituting the consol-
idated fund of the old Provinces which was the fund upon which
the debts of those Provinces were charged, we find a most plain
and unequivocal appropriation made by the 102nd sect, of the Act,
namely : "All duties and revenues over which the respective
Legislatures of Canada, Nova Scotia, and New Brunswick before
and at the Union had and have power of appropriation, except
such portions thereof as are by this Act reserved to the respective

PRIVY COUNCIL.

Lugislaturos of tho ProvinccB, or are ntisud by them in acconliuice
with the Bpecial powers conferred on them by this Act, sliall form
one Consolidated Revenue Fund t<t bo appropriated for tlio public
aurvice of Canada in the manner and subject to the charges in this
Act provided," and among those charges, in sect. 104, we tind "the
annual interest of the public debts of th« several Provinces of
( anada. Nova Scotia and New Brunswick at tho Union."

We have here, then, expressed in precise and unambiguous lan-
guage, api)ropriation made of everything which formed part of tho
consolidated funds of the several Provinces before confederation
(except what by tho Act is particularly and expressly excepted
tliereout and phiced under the control of the Legislatures of tho
Provinces created thereby) for the fonnatiou of the cnnsoliu:Ui'd
fund of tho Dominion of Canada, in return for the assumption i)y
the Dominion (which the old Provinces were erected into and
created) of the public debts of those old Provinces. The > lestion
is therefore simply reduced to this : does any other, and if an,\ .
what other pari o. the Ait which con.-<ti*utes the sole chsu'ttT
alike of the Dominion and of the Provinces, except any, am', if
[705] afly, what part of such consolidated fund of the Dominion
of Canada from that fund, and place such excepted part undor
tho control of the Legislatures of the Provinces. It is worthy
of note here, in connection with what I have already s.iid in rela-
tion to the argument as to the appropriation of property as distinct
from "legislative functions," that the excepted part, whatever it be
and in whatever clause of the Act it is found, is spoken of as being
"I'eserved to the respective Legislatures of the Provinces," that is,
as matter placed under the legislative control of and not as estate
vested in the Provinces.

Now, the only clause of the Act which can be contended to
involve the exception referred to in the 102Dd sect, is the 109th,
namely : "All lands, mines, minerals, and royalties belonging to the
several Provinces of Canada, Nova Scotia and New Brunswick at
the Uniim, and all sums then due or payable for such lands, mines,
minerals, or royalties shall belong to the several Provinces of
Ontario, Quebec, Nova Scotii and New Brunswick, in which the
same are situate or arise, subject to any trusts existing in respect
thereof and to any ii terest other than that of the Province in the
same."

We cannot, as I have already observed, read these words "lands,
mines, minerals and royalties belonging to the several Provinces

188.3
Attounkt-

(iKNKIlAL

r.
Mkkckk.

Hup. C,
Cuiiftdft.

(■Wynne, J.

I 1 !-

! ■

PRIVY COUNCIL.

1883

Attokney-
Genekal

v.
Mehc'er.

Sup. r..,

CaiKuia.
'G Wynne, J.

. . . . at the Union," as meaning that the estate and property
in those subjects shall be divested out of the Crown and be trans-
ferred to and vested in the Provinces as corporations, but, inasinuch
as this clause is to be read as expressing the exception out of the-
consolidated fund referred to [in] the 102nd sect., that these sourcea
of revenue, constituting portions of the territorial and casual revenues,
of the Crown forming the consolidated fund of the Dominion of
Canada, shall be excepted from the general appropriation of all
revenues in that fund, and shall be regarded as the excepted part*
which are by the 102nd sect, said to be "reserved to the respec-
[706] tive Legislatures of the Provinces," and placed under their
control.

Now, what lands, mines, minerals and royalties can with propriety,,
having regard to the manner in which those words have been used
in other legislative language above (picted, be said to have belonged
to the several Provinces of Canada, Nova Scntia and New Bruns--
wick at the Union ? None at all, it is plaiti, in any other sense
than that the revenues arising from such properties belonging to.
the Crown had been made part of the consolidated funds of the
old Px'ovinces now constituting the Dominion of Canada, for the-
public uses of these Provinces. " Lalids " which had been already
granted by the Crown, and were at the time of the union vested
in the grantees thereof, or in their heirs or assigns, cannot witli
any degree of propriety be said to have been lands " belonging to
the several Provinces . . . . at the Union," and it is only-
such lands granted which could devolve upon Her Majesty jure
coronaB by escheat and forfeiture, and for this reason it was thab,
tlie Legislature of Canada, which was the chief of the parties to
the framing of the B. N. A. Act and to the petition to the Imperial
Parliament to pass it, and within the limits of which Province the
property now in question is situate, declared by 12 Vict., c. 31, that
the term " public lands " in the Province, which is but an equivalent
expression to "lands belonging to the Provinces at the Union, "^
did not comprehend lands accruing to the Crown by escheat or
forfeiture, and that they did comprehend only the ungrauted lands
of the Crown in the Province, in which sense they have ever since-
been understood. (1)

These waste ungranted lands of tiie Crown, the revenues derived
from which constituted part of the consolidated funds of the Pro--

(1) See note on pt 74^, ante..

PRIVY COUNCIL.

derived
le Pro-

vinces before the union were, as we know, appropriated to the public
[707] uses of the Provinces ; but the lands so appropriated did not
coi.-jtitute all the ungranted lands of the Crown in the Pro^•inceB.
There were other lands of the Crown, the moneys arising from
the sale c other disposition of which did not f(^rm part of such
consolidated funds ; these lands were set apart and approp' iated
for the actual residence thereon and occupation thereof by certain
Indian tribes by whom they were surrendered to and became vested
in the Crown, and others were surrendered by the Indians to and
vested in the Crown for the purpose of being granted by the Crown
and that the moneys arising tiurefrom sliould be applied for the
benefit of the Indians. These lands are, by item 24 of sect. 91,
placed under the control of the Dominion Parliment. The custom
in the grants by the Crown of these lands was the same as in the
grants of all other Crown lands, namely, to reserve ail mines and
minerals, but the reservation thereof would accrue, as was provided
with respect to the moneys arising from the sale of the lands, to
the benefit of the Indians for whose benefit the lands were set apart.
Such mines or minerals or the royalties accruing from the disposi-
tion thereof could not have been appropriated to the public uses of
the Provinces ; the " lands " therefore Avhich are referred to in sect.
lUi) of the B. N. A. Act can only be construed to mean those
ungranted, or public lands belonging to the Crown within the
several Provinces of Canada, Nova Scotia and New Brunswick, the
revenues derived from which before and at the Union, eiiected by
the B. N. A. Act, had been surrendered by the Crown and made
part of the consolidated funds of the Provinces ; and the words
" mines, minerals and royalties " being in the same 109th sect,
added to the word *' lands," this latter word must there be con-
strued ill a limited sense, that is to say, as exclusive of the " mines
[708] antl minerals " therein, which, if those words had not been
added, the word " lands " might have been sufficient to compre-
hend, but the section reserves for the " Legislatures of the Prov-
inces," not only the mines and minerals, and royalties in or arising
out of such lands, but also, "all mines, minerals and royalties^
belonging to the several Provinces ... at the Union " ; that is
to say, not only all mines and minerals in the ungranted lands of
the Crown in the several Provinces, the revenues derived from
which have been aurrend red to and made part of the consolidated
funds of the Provinces for the respective uses of the Prrivinces, but
also all mines and minerals in the granted lands, and which by the
6

1883

ATTniNET-

Gknekal

r.
Mkuckh.

Suj). C,
Caiiivda.

G Wynne, J.

1883

Attorney-
Geneual

1'.
Meucer.

Sup. C,
Canada.

Gwynne, J.

PRIVY COUNCIL.

grants had been reserved by the Crown, the revenues derived from
which had been also made part of the said consolidated funds : the
intention, however, of the 109lh sect, was to reserve for the " Legia-
la'ures of the Provinces," created by the B. N. A. Act, not only
the "lands, mines and minerals " as above described, but also th"
moneys accruing to the Crown by way of royalties in mines already
being worked under leases or licenses fiom the Crown (which
moneys had also been appropriated to and formed part of such con-
solidated funds), of which there were many in Nova Scotia, to
regulate which, as we have .^een, Acts had been passed by the Legis-
lature of that Province : the word " royalties," therefore, was
tadded — the whole thus comprising all " lands " being t]:e ungranted
lands of the Crown as they were accustomed to be granted, the
revenue derived from the sale of which had been made part of the
said consolidated funds, and all ''mines and minerals," as well
those ui such lands as also in all lands already granted, the revenues
from which mines and minerals had been appropri ited in like man-
ner, and " the royalties " derived from such mines and minerals,
or (to which may be added) from timber cut upon public lands,
[70D] under licenses for that purpose, which had also been in like
manner appropriated, and all moneys then, that is, at the union, due
and payable for any of such lands, mines, minerals and royalties ;
these words, mines, minerals and royalties, being used all in their
natural and ordinary sense, and in the sense in which they were
used in the above quoted statutes of the Province of Nova Scotia
relating to " mines and minerals." We have thus a plain, simple,
rational and natural construction put upon the clause in which these
words constituting the exception referred to in sect. 102, are found,
aud which accords with the provisions of all of the above quoted
Acts relating to the same subject, and with the sense iu which the
same words are used in some of those Acts.

By giving to ihe words in the lOOth sect, their plain, natural and
ordinary construction, we need not resort to the coustructiou
pressed upon us by the learned counsel for the Provinces, which I
must say appears to me lo be strained and unnatural, and to have
been put forward as expressing what, iu the opinion of those
learned counsel, should have been the disposition made in the
B. N. A. Act by the framers thereof, rather thau what has been
made, of property accruing to the Crown by escheat or forfeiture.
It is with this latter point alone that we have to deal. Iu view, how-
ever, of the dispoaitioD attempted to have been made of the property

PRIVY COUNCIL.

^alties ;

their

were

Scotia

simple,

these

I'ound,

quoted

ioh the

ill question l»y th^ Legialnture of the Province of Ontario, in dero-
gation o. the claims of the woman who had lived for so many yea s
Avith the deceased as his wife, and of the young man their son who,
though illegitimate, had been brought up by the deceased as, iind
with the expectations of, a sou and under the name of the deceased,
and in derogation also of the right of Her Majesty to exercise her
prerogative of grace and bounty to repair the wrong done to
[710] those injured persons, who to all seeming, though not iu law,
filled the places of wife aud sou of the deceased (a prerogative which
in like cases had uever been known to fail), we may be permitted to
veuture the opinion, that thnse may be excused who doubt whether
the placing the claims ol such persons under the control of the
Local Legislatures would have been more prudent in any sense, or
more calculated to promote the interests of justice and humanity,
and to procure redress of the wrongs of the parties already cruelly
injured by peihaps the unintentional accident of tlie deceased having
died without a will, or best adapted to advance the real good of the
jiiiblic, than to leave the matter still to be dealt with by Her Majesty,
as it had always hitherti) been, for the protection of the injured,
controlled only by the legislative authority vested in Her Majesty
by and with tlie advice and consent of the Parliament of the
Dominion. For the reason, however, already given, I entertain no
doubt that control over all property in the several Provinces of the
Dominion becoming escheated or forfeited to the Crown is placed
under the exclusive control of the Dominion Parliament by the
102nd sect, of the B. N. A. Act, and that no other clause or part of
the Act exempts such property from such disposition ; the Act
therefore of the Province of Ontario, 40 Vict. c. 3, which atl'ects to
deal w ith such property is ultra vires and void, and the appeal in
this case should be allowed with costs.

As it did not appear to me to be necessary for the determination
of the question before us, I have not followed the learned counsel
in all their adverse criticism of the frame of, and of the expressions
used in, the B. N. A. Act. I may, however, say that it is not, in
my opinion, justly chargeable with the defects imputed to it, or
open to the construction put upon it by the learned counsel who
[711] represented the Provmces. In my judgment it expresses in
sufficiently clear language the plain intent of the framers of that
Act to have been, that the plan designed by them of federally
uniting the old Provinces of Canada,-Nova Scotia and New Bruns-
wick into one Dominion under the Crown of the United Kingdom

1883

Attornet-
Genbkal

Merckb.

Sup. C,
Canada,

Gwynne, J.

««neEa

ii !5j

PRIVY COUNCIL.

1883

Attornky-
Gknkral

Mercer.

Sup. C,
Canada.

Gwynne, J.

of Great Britain and Ireland with a constitution similar in principle
to that of the United Kingdom, was, to confer upon the Dominion
so formed a quasi national existence — to sow in its constitution the
seeds of national power — to give to it a national Parliament consti-
tuted after the pattern of the Imperial Parliament, Her Majesty
lierself constituting one of the branches thereof, and to constitute
within that national power so constituted and called the " Dominion
of Canada," certain suboi'dinale bodies called Provinces having
jurisdiction exclusive though not " sovereign " over matters specially-
assigned to them of a purely local, municipal and private character,
to which Provinces, by reason of this jurisdiction being so limited,
were given constitutions of an almost purely democratic character,
of whose le;,'islatures Her Majesty does not, aa she does of the
Dominion, and as she did of the old Provinces, constitute a com-
ponent part, and to the validity of whose Acts, the Act which con-
st!', utes their charter does not even contemplate the nssent of Her
Majesty as necessary. The jurisdiction conferred on these bodies
being purely of a local, municipal, private and domestic character,
no such intervention of the sovereign consent was deemed necessary
or ajjpropriate, so likewise the power of disallowing Acts of the
Provincial Legislatures is no longer, as it was under the old consti-
tution of the Provinces, vested in Her Majesty, but in the Governor-
General of the Dominion in Council, and this is for the purpose of
enabling the authorities of the Dominion to exercise that branch
of sovereign power formerly exercised by Her Majesty in right of her
[712] prerogative royal , but to be cxerc'sed no longer as a branch
of the prerogative, but as a power by statute vested in the Dominion
authorities (the royal prerogative being for that purpose extin-
guished^ and to enable the Dominion authorities to prevent the
Legislatures of the Provinces, carved out of and subordinated to
the Dominion, fron^ encoaching upon the subjects placed under the
control of the national Parliament by assuming to legislate upon
those subjects which are not within the jurisdiction of the Provin-
cial Legislatures.

The appeal must be allowed with costs, the order overruling th©
appellants' demurrer to the information filed by the Attorney-Gene-,
ral of the Province of Ontario in the Court of Chancery of that
Province di'-charged, the demurrer allowed, and the said informatioix
dismissed with costs.

PRIVY COUNCIL.
Judgments in Ontario Court of Appeal.

1883

[Reported 6 App. Rep. 576.]

Burton, J. A.

Attorney-
General

1 , , , , , Mercer.
[584] I entertained great doubt upon the ai-gument whether the

action of ejectment was not, by the Revised Statutes (1), substituted ' ^" ''^"Q«

for the preliniinaiy process which was previously in use, and that if Burton, J.A.

therefore an inquest of office would have been necessary but for the

statute, the remedy substituted for it, and that alone, would have

to be resorted to.

It is not, in my view of the facts, necessary to consider that ques-
tion, as I am of opinion, for the reasons so fully stated by my brother
Patterson, that no inquest of office would have been necessary in the
present case, and that the Crown is not under the necessity of .esort-
inj,' to the statute, but can exercise the right of selecting its forum,
and of instituting therefore the proceedings in the Court of Chancery
that have given rise to this appeal.

The important question, therefore, for decision is, whether pro-
perty of this nature, since confederation, goes to the Dominion, or
to the Queen for the uses of the Dominion, and not to the Quulu for
the uses of the Province, for it is too late at this day to contend that
the law of escheats pro defectu sanguinis does not exist, in this Pro-
vince. Any such question must now be settled by a Court of ulti-
mate resort.

The learned counsel for the appellant dwelt at great length in his
arguiii'^ut on the question of the prerogative of the Crown in matters
of escheats, and traced the history of the surrender of the territorial
and casual revenues by tlie Crown to the Province of Can.arla in
aid of a permanent civil list, and the legislation sul>se(iuent to
that surrender ; and contended that these funds having been
surrendered and appropriated for a specific ol)ject, still remain
part of the consolidated fund appropriated for the public service of
the Dominion, and that escheats lorm a portion of these funds. The
argument shewed much learning and reseai-ch on the part of the
learned counsel, but, after giving to it full consideration, I humbly
conceive that the solution of the matter is to be found in the inter-
pretation to be given to the language of the B. N. A. Act, and that
we need not look beyt tnd it.

[586] I find no warrant in that Act for the assertion so frequently
made, that all rights or property not expressly given to the Province

(1) R. S. O., c. 94, 8. 1. "

PRIVY CO[INCIL.

Attorney-
Grnekal

Merceu.
0. A., Ontario.

1 ii

1883 pass to the Dominion ; on the contrary, I take it to be clear that the

Provinces retained all property and rights which were previously
vested in them under the Constitutional Acts then in force, except
those which by the Confederation Act are taken from them and
transferred to the Dominion.

In the distrilnition of the legislative powers the Parliament of
Bur ton, J. A. Canada is authorized " to make laws for the peace, order, and good
government of Canada, in relation to all matters not coming within
the classes of subjects by this Act assij^ned exclusively to the Legis-
latures of the Provinces," although the framers of the Imperial
Act have endeavoured, by the enumeration of the classes of sub-
jects upon which each should have the power of legislating, to confine
eacli Legislature strictly within the bounds assigned to them ; bat
when we come to the clauses dealing w^ith the property of the Pro-
vinces, very dillerent language is nsed, and very different considera-
tions arise.

In the first place, the Provinces already existed with a constitu-
tion of their own, with certain properties, rightsi, assets, and
revenues, and these could only be taken from them by their own
consent, or by the legislation of a superior authority. All lands
belonging to the several Provinces were, previous to confederation,
under our form or system of government, vested in the Sovereign as
a mere matter of form, it being a simple trust for the benefit of the
Provinces, but were then granted in the Qupen's name, by the
several Lieutenant-Governors of the Provinces (with the exception
of Canada, which was then under the immediate government of the
Governor-Oeneral), and since confederation in all the Provinces,
grants from the Crown of public lands are invariably made by the
Lieutenant-Governors in Her Majesty's name.

These lands then, though nominally the property of the Crown,
were in truth and io fact the property of the Province, were entirely
[586] under the control of the Executive and Legislature of the
Province, and although the right of escheat, which is sometimes
spoken of as a species of reversion, was in the Crown, it was always
exercised for the benefit of the parties beneficially interested in such
reversionary interest, or, in other words, the Government of the
particular Province in which the land was situated.

This right then, as well as the lands themselves, belonged to the
Province, and when we refer to the Imperial Act dealing with these
subjects, what do we find ?

By sect. 109, all lands belonging to the several Provinces of

PRIVY COUNCIL.

Attornkt-
Geneual

Mekceh.
C. A., Ontario

to the
these

Ices of

Canadi, and all sums then due and payable for such lands, shall be- 1883

long (o the several Provinces ol Ontario and Quebec in which the
same are situate, subject to any interest other than that of the
Province in the samo.

The teri.i " all lands " must be held to include any interest which
the Province then held, or was entitled to, in the lands, including
any reversionary interest, or interest incident to the tenure ; if not, Bur ton, J. A
no disposition whatever is made of such interest, and it will remain
in Her Majesty, not impressed with any trust, r. result which it
would be too absurd to suppose, but yet that would be the result,
treating it as a reversionary interest or mere incident to the tenure,
for in no portion of the Confederation Act is it given to the
Dominion.

The right can be regarded as a prerogative right to this extent
and for this purpose only. That it is convenient, under our form
of government, that the whole public domain shall be vested in
Her Majesty, bxit purely and solely for the benefit of the Province.
The land is under the sole control of the provincial authorities.
Her Majesty's name is used by them in every grant from the
Crown in the same way as in many other matters, as, for instance, in
every writ which, under provincial legislation, issues from the
Courts of law, and in the commissions which are issued for the
appointment of Justices of the Peace and other provincial officials.

Neither, then as a prerogative of the Sovereign, nor as an
incident to the tenure, has the Dominion, in my opinion, made good
its claim.

I prefer to place my judgment on the ground I have indicated
above, rather than on that adopted by the Court of Appeal in
Quebec (1), although I think there is no material difference between
them.

I do not think the word revenues, used as it is in sect. 102 in con-
nection with the word duties, can be held to apply to such property
as this ; but, at all events, territorial revenues cannot be meant, as
lands and their proceeds are reserved to the Province by sect. 109,
and it would be a forced construction of that section to hold that
this reservation did not include lands revested in the Province by
reason of the failure of persons to inherit the land granted, or the
happening of the contingency up ^n which it was understood the
Province would again acquire a title to them.

(1) See Attorney-General of Quebec v. Attomey-Oeneral of the Dominion,
2 Quebec Law Rep. 236, post. p. 100.

PRIVY COUNCIL.

Attounkv-
Gknehal

Meuc'kk.

1883 If the claim of the Dominion wore once conceded, it must be

regarded as controlling tlie general power of the Province to deal
with projierty and civil rights ; in other worda, if, since confedera-
tion, i>roiierty escheated to the Crown pro defectu sivnguinis becomes
the i)ro]ierty of the Dominion, any attempt on the part of the Pro-

'! ' ■ vincial Legislatures to alter the law of descent, and thus defeat the

Burton, J. A. title of the Dominion to escheated lands, would be ultra vires ; but
I regard the fact that this power of dealing with propertj' and civil
rights is given to the local Legislatures, without any express limita-
tion, as strongly indicative of the general intention that £his descrip-
tion of property was intended still to vest in the Provincial authori-
ties, or, what is the same thing, in the Queen for these authorities.
I am of opinion that the judgment of the learned Vice-Chancellor
is correct, and should bo affirmed, and this appeal dismissed, with
costs.

i 1

• ^

■ 'l

Patterson, J.A.: —

The questions before us arise upon a demurrer by Andrew F.
Mercer, one of the defendants, to an information filed by the Attor-
ney-General ol' Ontario for the puqiose of obtaining possession of
[588] land in the city of Toronto which was the property of Andrew
Mercer, who is now deceased .

The facts with wliich we have to deal are, therefore, those stated
in the information. I shall m.ake a short statement of them.

Andrew Mercer died in June, 1871, intestate, and without leaving
any heir or next c f kin.

He was, at the time of his death, seised in fee simple of the land.

Immediately after his death the defendants entered into posses-
sion of the land without the permission or assent of Her Majesty,
and refused to give up possession to Her Majesty, or to the informant
actin;^ on her behalf in this Province.

In 1875 the defendant, Andrew F. Mercer, instituted a suit in
Chanceiy against the Attorney-General, in which a decree was pro-
nounced in accordance with the prayer of his bill, referring it to
the Master to inqiiire whether the late Andrew Mercer left any
heirs-at-law or next of kin him surviving. Pending that inquiry, an
issue was tried at the instance of A. F. Mercer, which resulted in a
decree that A. F. Mercer was not the lawful son and heir-at-law or
next of kin of Andrew Mercer, and that the defendant, Bridget
O'Reilly, the mother of A. F. Mercer, was never married to Audi ew
Mercer ; and directing the inquiry formerly directed to be proceeded

PUIVY COUNCIL.

ArrouNEY-
Gknkkal

r.
Mekcek.

C.A., (Ontario.

with. That was done, and a decree was made, after a liearing on 1883
further directions, dechvring that Andrew Mercer died intestate and
without heirs or next of kin, and that by reason tliereof liis real and
personal estate had become vested in Her Majesty in right of her
royal prerogative. These decrees were duly signed and enrolled.

The demurrer was overruled by Vice-Chancellor Proudfoot, and
the defendant, Andrew F. Mercer, appeals from that decision. '

Four points have been made (.n his behalf.

First : The application of the law of escheat to lands in this
Province is disputed.

[580] Secondly : It is asserted that, if the right exists, it belongs
to the Dominion and not to the Province.

Thirdly : It is contended that the Crown can only proceed by
the common law process of inquisition of office.

And fourthly : That if im^uisition of office has been rendered un-
necessary by the Ontario Aot of 1877, R. S. O., c. 94, the only sub-
stituted remedy is an action of ejectment, and the Court of Chancery
has therefore no jurisdiction.

The third and fourth points probably involve the same question,
but for the sake of distinctness they may be treated separately.

The first point was not much pressed by counsel ; but, in con-
nection with it, reference was made to the old feudal tenures to which
escheat was incident, and to the introduction of free and common
socage as the tenure upon which the Act of 1791 required grants
of land in this Piovince to be made.

It is not necessary to follow the discussion of these topics, inter-
esting though they may be, because they are really beside the ques-
tions with which we are conc.rned.

We only know that Andrew Mercer was seised in fee simple.
We are not informed how or when the land fiist passed from the
crown. Lands in fee are held of some superior lord. "It is a
man's demesne, dominicum, or propi rty, since it belongs to him
and his heirs for ever ; yet this dominicum, property or demesne,
is strictly not absolute or allodial, but qualified or feudal ; it is his
demesne as o//ce; that is, it is not purely and simply his own,
since it is held of a supei ior lord, in whom the ultimate property
resides." (1)

If held in socage, it is suflicient to note from Blackstone (2),
that " Escheats are equally incident to tenure in socage, as they

(1) 2 Bl. Com. p. 105.

(2) Vol. 2, p. 89,

PRIVY COUNCIL.

1883

Attounky-
Gkneral

v.
Mkix'er.

C.A., Ontario.
Patterson, J. A.

were to tenure by knight Rervice ; except only in gavelkind lands,
which are . . . aubjoct to no escheats for felony, though they
are to escheats for want of heirs."

[590] The aigument against the application of the doctrine of es-
cheat to any class of property is incimiplete, unless it points out
where the title is to vest — who is the ultiinus hrores •. and this in-
quiry, being answered in most civilized communities in the one
way, is fatal to the argument. I should say that as I apprehonded
the learned counsel for tlie appellant, although he took this point,
he took it rather as loaling up t > the other, which I have to notice
in its proper place, that if we adopted escheat as an ir.cident to
the tenure of our lands, we took with it the nece.ssity of enforcing
it according to the ancient procedure, by inquest of office.

In considering the second objection, viz., that which denies the
right of the Province as against the Dominion, I have but little
to add to what was said by the learned Judges of the Queen's
Bench of Quebec, in Attorneij-Gencral of Quebec v. Attorney-General
of the Dominion (Church v. Blake) (1), in deciding a similar ques-
tion in favour of the Province. I agree with them in the conclu-
sion at which they arrived, and in the general tenor of the argu-
ments upon which that conclusion is rested. If I have any reser-
vaticr;, it is with reference to one argument which was advanced
again before us by counsel for the respondent. I allude to the
susjgestion that the Local Legislature has power to enact that upon
death, intestate and without heirs, the property of the deceased
shall vest in illegitimate offspring or pass to some other destination,
as t ) charitable institutions or the like. I have not been able to
see that such legislation would be intra vires, if it is granted that,
without it, the property would escheat to the Dominion, and partic-
ularly if the escheat is properly regnrded as a kind of reversionary
interest. The argument seems to me to verge upon a petitio principii.
It is, however, only employed by way of illustration, and leaves the
force of the decision unaffected.

I think there is great force in the contention that the escheat
is of the nature of a reversion, and is therefore an interest in land,
and is secured to the Province as "land," even without resorting
[591] to the term "royalty," by sect. 109 of the B. N. A. Act. I
think at the same time that the principle applied by Mr. Justice
Ramsay in his judgment in Church v. Blake (1), to the interpretation

(1) 2 Quebec Law Rep. 236, post, p. 100.

PllIVV COUNCIL.

Attohnkt-
Gknkuai.

Mkkckr.
C.A., Ontario.

of tho word "royalty," ia fairly applied, and that we are not com- 1883

jpclled by any rnlo fif construction to narrow its ordinary significa-
tion. We can scarcely lefer t) definitions of eschevt in tho hooks
without finding some allusion to the reversionary character of the
riijht. Thus Bl. Com., Vol. I., p. 302: "Another branch of tho
King's onlinary revenue arises from escheats of lands, which happen
upon the de'ect of heirs to succeed to the inheritance ; whereupon " ^'^^""' " *
they in general revert to and vest in th'> King, who is eateenied.
in the eye of the law, the original proprietor of all the lands in the
kingdom." And in Vol. 2., p. 72 : "The last consequence of tenure
in cliivalry was escheat ; which is the determination of the tenure,
or dissolution of tho nmtual b<md between the lord and tenant,
from tho extinction of the blood of the latter by either natural or civil
means. . . In such cases the land eschented or fell back to the loi d
of the fee." And at p. 2il : " Tho word itself is originally French or
Norman, in which language it signifies chance or accident ; and
with us it denotes an obstruction of the course of descent and a
consequent determination of the tenure, by some unforeseen con-
tingency : in which case tho land naturally results back, by a kind
of reversion, to the original grantor or lord of the fee." In
Chitty on Prerog., at p. 227, similar language is employed, and he
adds : " It is in this pniHt of view that Bracton terms escheat a
species of reversion." So Lord Mansfield said in Burgess v.
Iflieate (1) : " It has been truly said, in the beginning of the feudal
tenure this right was a strict reveri-ion. The grant determined by
failure of heirs ; tho land returned as it did upon the expiration
of any le*a temporary interest. 'Twas no fruit, but the extinction
of tenure (as Mr. Justice Wright says), 'twas the fee returned."
And so the doctrine is uniformly stated in American authorities.
[592] I merely add these observations to the discussion of the
question in the case of Church v. Blake (2), and do not attempt
an exhaustive or independent examination of it, as I am satisfit d
to follow that decision.

I now come to the third point, which asserts the necessity for in-
quest of oflSce.

"The principal rule with respect to oflSces is, that they are not
necessary when the King's title already appears in any sJuipe of
record :" (Chitty on Prerog. 248).

We must take judicial notice that all lands in this Province are

(1) 1 Wm. Bl. 123, 163. (2) 2 Quebec Law Rep. 236, past, p. 100.

PUIVY COUNCIL.

x\rr()UNKT-

(iKNKUAL

Mkuckr.
T3.A., Ontario.

1883 helil directly from the Crown, and not under any mesne lord, and

that all giants from the Crown are of record. Andrew Mtrcer,
holding in tee simple, theiefuie held as tenant in capite. The
only qnestion which at any time caused mo to hesitate as to iufiuenit
ever heing neceHsary was what seemed to me the possible necessity
for a Hnding of record that the tenant died without heirn. I do not,
Patt crHuii, J.A. however, find anything to countenance a doubt of the kind. On the
contrary, it seems to be everywhere broadly laid down> that upon
the death of the King's ^enant, without heirs, no office of entitling
is necessary.

In Viner's Abr. Office or Inquisition, D. pi. 10, 11, it is said:
" Tlie King may be seised without office. As where the King's
tenant dio^i without heir. Note. — It seems that entry by a stranger
shall not alter the case."

In Due d, Ha)jne v. Iledfern (1) Lord EUenb )roug!i, discussing the
return to the inquisition in that case, which had not found of whom
the lands were holden, said : " The cases of the King's tenants in
oapite, and his other known tenants, bear no analogy to this case ;
because there the tenure was of record, and upon the tenant's death,
the King was entitled to take seisin of the land, and to receive the
profits to hisj own use, till the heir appeared to claim the land and
receive investiture ; and if the heir were under age, the King was
entitled to wardship ; if of full age, to primer seisin or rulief ; and if
there were no heir, the King's seisin was of course indel'easil^le.

The circumstance that the defendants are in occupation was urged
[593] on behalf of the appellant for two purposes, viz., to show that
there beiiig some one to perform the feudal services, there should be
no escheat, and further, as creating a difference between this case
and one in which the possession was vacant.

The delendant is in possession, on the facts before us, as a stranger.
The allegation in the information is not that he was in possession
when Andrew Mercer died, but that he entered immediately after
the decease. But, either way, I do not find th it his presence there
renders office necessary.

The whole objection is, however, covered, conclusively to my
mind, by what appears in the information, where we are told
that the fact is found of record that Mercer died intestate and
without heirs. It has been so found in proceedings instituted by
this del'endaut himself. I do not know that that circumstance

(1) 12 East 96, 110.

I'UIVY COUNCIL.

Attouney-

(tKNKU.VI.
V.

Mkkc'kk.
C. A., Ontario,

makes the matter much stronger, but if any rincstion cnulrl have 1883

boen raisoil, the remark niiule by the Maate- "" the Rolls, in Ihtrfjens

V. Jr/H'(/t' (I), would be apposite ; " But if any one olae," he said,

"could have made the objection, Burgess cannot, for ho brought

the Crown here firs* and so is estopped. In Sir John IVanleiiH Case,

before Lord Talbot, there was an ol)jection for want of jurisdiction

here, and that the matter was properly triable at law. But it being Pft"""-«ioii. J.A.

disclosed that he had filed a cross bill, the Ccuirt did not enter into

that objection, but saiil the defendant had (jivn a jurisdiction."

And see Scripture v. Curtis (2).

I think there is no point of view in which the title of the Crown
does not appear of record ; and therefore, on the strictest rujo, no
office was necessary.

Had office been P"icessary at common law, I have not formed a
final opinion as to -> ' ether that necessity has been removed by the
statute 11. S. O. , c. 94. The inclination of my opinion has been, that
the true construction of that statute merely substitutes ejectment
for inquest of office. There are considerations of weight, some of
wliich have been pressed upon us, for refusing to extend by any
[594] liberality of construction the necessary effect of that legisla-
tion. But, no office being necessary in the circumstances of this
case, it is not incumbent on the Crown to resort to that statute at
all. The position comes to this : the Crown being entitled to the
land, finds an intruder in possession. Whatever remedj', therefore,
is appropriate to the recovery of land, the title to which is undis-
puted, but the possession of which is wrongfully withheld, must be
available ; and we are merely entertaining, at the instance of the.
Crown, a suit such as has lately become common in Chancery
between subject and subject, and which, apart from the prerogative
right to resort to whichever Court the Crown shall choose, is within,
the ordinary jurisdiction as now established.

My opinion is that this appeal must be dismissed, with costs.

Moss, C. J. O., (3) and Mokrison, J. A., concurred.

(1) 1 Wm. Bl. 123, 132. (2) 11 U. C. 0. P. 345.

(3) [Moss, C. J., had prepared a judgment in this case, which by some means,

was mislaid.]

1888

ATTOnXET-

Gknkual

Mehcku.
Chy. , Ontario.
Proudfoot, \'.C.

94 PRIVY COUNCIL.

Judgment in Ontario Coubt of Chancery.
[Eeported S6 Grant, 126].

Proudfoot, V. C. : —

[127] This is an information by the Attorney-General of Ontario
against Bridget O'Eeilly, Andrew F. Mercer and Catharine Smith,
stating that Andrew Mercer, late of the City of Toronto, died on
the thirteenth of June, 1871, intestate and without leaving any heir
or next of kin, whereby the real estate of the said Andrew Mercer,
in Ontario, became escheated to the Crown fur the benefit of tliat
Province. Tliat he ilied seised of certain specified real estate.
That immediately upon his death the defendants entered into posses-
sion of it without the [permission or assent of Her Majesty, and
have continued in possession and refuse to give up the pt)Ssession to
Her Majesty. Tliat possession was demanded on the twenty-tirst of
September, 1878, but the defendants refuse U> deliver possession.
The defendant, Andrew F. Mercer, demurs lor want of equity.
For the demurrer it was argued :

1. That this Court ]ias no jurisdiction in cas^es of escheat, assum-
ing that cases of escheat per defectum sanguinis are known to our
law.

2. That the doctrine of escheat does not apply to lands held in
free and common socage. That it is not a doctrine of the conuuon
law ; that it is a feudal doctrine and applicable only to feudal tenures.

3. That if the Queen is entitled, the Attorney-General of Ontario
is not entitled to represent her, and to appropriate the escheats to the
uses of the Province.

4. If escheats exist, this is not the proper mode of procedure to
obtain possession.

I shall consider these objections in the order in which they were
presented.

The information is practically an ejectment suit, resting upon a
legal title, and seeking to obtain possession of the property in ques-
tion. But this Court has recently held, after much consideration,
[12°] that the Queen may select any of her courts to assert her
rights whether legal or equitable, and this independently of the
Administration of Justice Act. It was held also in the same
case that, although the Act does not name the Crown, the Crown
may take advantage of its provisions. And the Act declares that
this Court shall have jurisdiction in all matters which would be

B) I

PRIVY COUNCIL.

Attorney-
Geneual

Meucer.

Chy., Ontario.

cognizable at law (1). Theretore, even if the Act be ultra vires, 1883

still this case is brought in a proper forum.

The tenure of free and common socage is well known to tlie law
— it existed through all the period of the feudal tenures, and was in
fact a feudal tenure itself. The Act of Cliarle.s 2 abolished the
military tenures but did not create the socage tenure ; it found it in

existence and changed the others into it. The incidents connected '

with this tenure before that time continued to be attached to it.
When the Act of 1791 declared that lands in Canada should be
granted in free and common socage, it tlierefore introduced the
tenure with all its incidents and consequences. One of the.se conse-
quences was the liability to escheat : " All lands and tenements held
in socage, whether of the King or of a subject, are liable to esclieat."
Cruise Dig. : 3. 401. This is inherent in the tenure, an essential
part of it, and imposes no restriction upon the owner. Ue hail the
power to dispose of it as he pleased during his life, and he m'^'ht
have devised it by his will : when he does neither, and dies without
heirs, it is no restriction of his title to say that it .--liall revert to the
Crown.

IJut it is a mistake, T apprehend, to imagine that the doctrine of
escheat to the Crown for want of heirs is only a feudal doctrine. It
has a f ' lundation much more ancient, and rests upon principles of
general application, independent of any relation to feuds, lilack-
stone (2) says that in such a case, "to prevent the robust title of
[129] occupancy from again taking place, the doctrir.e of escheats is
adopted in almost every country ; whereby the Sovereign of the
state and those who claim under his authority are the ultimate
heirs, and succeed to those inlieritances to which no other title can
be formed." It was a maxim of the Roman Jurisprudence that the
proijerty of those who died intestate, and without legitimate heirs,
belonged to the state. " Scire debet gravitas tua, intestatorum res,
qui sine legitimo haerede decesserint tisci nostri rationibus vin-
dicandus " (3). And Domat, the celebrated French Jurist, refers
it to this principle, that property which has no owner passes
naturally to the use of the public and accrues to the Sovereign who
is its head, and that in France it passed to the King (4). And I
apprehend that similar dispositions will be found in most of the
European nations which derived their jurisprudence from the Civil

(1) Attorney-General v. Walker, 25 Grant, 233. (3) Cod. 10, 10, 1.

(2) Vol. 2, p. 11. (4) Dom. Loi? Civ. Lib. 4, tit. 8. *

PRIVY COUNCIL.

1883

Attokxkt-
Genkkal

Mekceu.

Law. The Code Nap. (a. 559) enacts that the property undispi'Sed of
of those who die without heirs belongs to the public domain. And
the propriety of some such provision is also evidenced by the enact-
ments of the neighbouring States to the same eft'ect. It ia no harsh

rule therefore of an obsolete or antiquated state of society, stretch-
Chy., Ontario. . ., , ,. , • ,i ,• i . , . , • i ••
ing its baneful influence over times and circumstances to which it

I'rou dfoot , v.c. ^y..^g never intended to apply ; but it is an enlightened provision of

the policy of many, if not all, civilized States, to prevent the anarchy

and confusion that would arise from permitting the robust title of

the strong hand to be asserted.

The sect. 401 of the Lower Canadian code was referred to as
shewing that an enactment was necessary to confer this right on the
Crown. But that code was not a system of new laws ; it was a
codification of those that were in force before it was drawn up, and
it rather proves the right as a part of previous Provincial law on the
subject.

[ ' .30] Bjj^ some strange misconception it was said that gavelkind
lands do not esch< at, and therefore that lands under our system of in-
heritance similar to that of gavelkind ought not to escheat. Black-
stone (1) is quoted for this ; but he is there treating of escheats
from corruption of blood from treason or felony, and he says that
gavelkind lands are in no case liable to escheat for felony, though
they are liable to forfeiture for treason. But even that is too gen-
eral a statement, for if a tenant in gavelkind, being indicted for
felony, absent himself, and is outlawed after proclamation made
for him in the county, his heir shall reap no benefit by the custom,
but the lands shall escheat to the lord. (Cruise Dig. 3. 401 .) There
is not a word, however, to estjiblish the assertion that such lands
do not escheat for want of heirs.

The expression quoted by the learned counsel for the defendant,
from the opinion of the law officers of the Crown in 1817 (2), that
all the consequences which follow socage tenure by the law of
England must follow it in Upper Canada, seems to me to state the
law correctly. If the right of escheat did not necessarily follow
the introduction of the tenure by the Imperial Act of 1791, our
own statute of 1792, sect. 3, directing that in all matters of contro-
versy relative to property, resort should be had to the laws of
England, must be taken to have introduced it. Our own law then
has provided for it, and the assertion of the right is not in conflict

(1) Vol. 2, p. 252.

(2) Forsyth's Cases and Opinions, p. 164.

PRIVY COUNCIL.

with any local law, but in purauance of it, and sanctioned by all 1883

the weight our approval could give it. It is not an odious prerog- ^^^gj^g^.

ative, but a natural and essential right in every well regulated Genkkat.

State. The revenue derived from it forms no part of the personal Meroku.

property of the Sovereign, biit is received and expended for the Q^y.^Ontario.

benefit of the common weal. It is no confiscation of any one's

. , .,.,,.,■, , , J Proudfoot, V.C.
property, for, from the terms of this bill, it belongs to no one, and

[131] the defendants are unjustly iu possession of what does not
belonf to them. There was a great deal said in the opinions o*'
the Judges in Burcjess v. Wheate (1), so largely quoted by the
learned counsel, that renders it difficult to determine (as Lord
Thurlow said in Middleton v. Spker (2),) whether that case was such
an one as bound only when it occurred speciatim, or afforded a
general principle. It " was determined upon divided opinions, anc.
opinions which c mtinue to be divided, of verj' learned men." All
ihat was really decided in the case was that a trustee having the
legal estate held it for his own benefit when the beneficiary died
without heirs. There was a tenant (who had the legal estate) to
perform the services, and the land could not revert.

The next question discussed was, if the Crown was entitled, is the
Attorney-General of Ontario authorized to represent Her Majesty,
and to appropriate the escheat for the purposes of the Province.
The learned counsel made an able argument to shew that escheats
belong to the Consolidated Revenue of the Dominion and not to the
Local Legislature. That so far as there is any power in Canada of
appropriating these revenues under Imperial Acts, the Federal
Parliament alone can deal with them. That the casual revenues of
the Crown in Ontario (as distinct from territorial) are Federal reven-
ues applicable to Federal purposes, and payable to the Receiver-
(leneral of the Dominion. The question has been the subject of
judicial decision in the Queen's Bench in Quebec, on appeal
from the Superior Court at Kamouraska, iu a case in which the
Attorney-General for Quebec was the appellant and the Attorney-
General for the Dominion was respondent (3), and it was determined
that the escheat accrued to tlie benefit of the Province of Quebec,
and not of the Dominion. While not absolutely bound to follow
that decision, yet considering that it was the unanimous decision of
[132] judges of great eminence of one of the Confederate Provinces,

(1) 1 Wm. Bl. 123; 1 Eden, 127. (2) 1 Brown C. 0. 201, 204.

<3) Atton\fi/-Oenera! of Quebec v. Attorncy-Oemral of the Dominion, 2 Quebec
Law Rep. 230, pout, p. 100.
?

Tfir

PRIVY COUNCIL.

AlTOKNEY-

General

I'.

Meucek.

1888 sitting in apiieal, and construing the same Acts and legislative pro-

visions now brought into question, it would be unseemly in me to
venture to give a contrary opinion, and I have therefore concluded
to follow that decision until it be reversed by some higher tribunal,

without endeavouring to construe the various Acts that were
Chy., Ontario, - , ^
"' ' refei red to.

Prou Jfout , v.c. fpjjg jjjgj. ground of demurrer argued was that the mode of pro-
cedure was essentially wrong, by a mi-sconception of a statement in
some of the law books, that while there was a tenant there could bo
no escheat, and that here the defendants were tenants in possession.
Teniott, however, in this case means one who holds by tenure. The
case usually put to exemplify it is Litt. s. 390. " If there be lord
and tenant, and the tenant be disseised, and the disseisor alien to
another in lee, and the alienee die without issue, and the lord enter
as in his escheat : in this case the disseisee may enter upon the land,
because the lord cometh not to the land by descent but by wj'j of
escheat :" or, in other words, when the tenant in fee has been
evicted by an intruder who sells, and the purchaser dies without
heirs, the land does not escheat, because there is a rightful owner,
a tenant, in existence, who is entitled lo enter and repossess himself
of his estate ; i. <., the death of a person in possession without title
and without heirs does not enable tlie lord to take it as an escheat
to the prejudice of him who has the title. The case quoted from 4
Rep. 54 b. The Commv)U(ltij of Si^dlers, is to the same efl'ect. In Sir
George Sands' Case (1), the legal estate was hi Sir George Sands, sub-
ject to a trust, and the beneficiary was executed for murder, and it
was held there was no escheat, for tliere was a tenant, i.e., Sir
George Sands, who had the fee simple in him. The same was the
decision in Burgess v. IVheate (2), where it was held that where the
[133] beneficiary died without heirs, the trustee might hold the es-
tate. He had the legal fee in him, he was a tenant in the proper
sense of the word, and there could be no escheat. Ihe d. Hayne v.
Redferu (3), proceeded upon the fact that ofHce had not been found,
and therefore the title of the plaintiff was not perfect. The cases
quoted shew nothing more than this, that it the legal estate be
vested in some one, the death of the person beneficially entitled
will not cause an escheat. The case of mortgag<ir and mortgagee
proceeds on the same principle. The legal estate is in the mort-
gagee, and upon the death of the niortga;^or without heirs there is

(1) Hardres, 488. (2) 1 Wm. Bl. 123; 1 Eden, 127. (3) 12 East, 9G.

•'«

PllIVY COUNCIL.

1883

ptate be

Icntitled

Lrtgagpe

le mort-

there ia

L 96.

AirORNEY-

Gkneral

)'.
Mkuceh.

no escheat, for there is a tenant, the person having the estate. It
was said that the son here was as much a tenant as the heir of a
disseisor. Suppose that to be the case, the heir of the disseisor is
not the tenant who prevents the escheat, but the disseisee.

If the view contended for bv the defendant be law, the first occu- — - .

pant, any squatter who nii^^ht chance to get into possession, would __

be entitled to liold possession. But tliere is said by Blackstone (1) '"""J^. •^•
to be only one instance wherein a title to real estate could ever be
acquired by occupancy, viz., on the do.vth of a grantee for the life of
another, and even that has been altered since his time (2).

But a mere possessor without title is not a tenant. He may be
an occupant, but the cases cited do not refer to such a person.

Following the decision in Quebec, I must also assume that the R.
S. O., c. 94, on this subject is not ultra vires, and that the A. J. Act,
so far as applicable to the mode of procedure, is also not ultra vires.
By the Escheat Act, R.S.O., c. 94, tlie Attorney-General may bring
ejectment, and the proceedings maybe similar to those in other actions
of ejectment. Grants may be made of escheated lands without in-
[134] quest of office being first found, and the grantee may take pro-
ceedings in any Court of competent jurisdiction for the recovery of
them. By tlie A. J. Act, this Court has all the power of a Court of
law m such actions. It would be strange, therefore, if the grantee
of the Crown would be in a better position than the Crown itself,
and might bring a suit here which the Crown could not. But that
would be reversing the order of aftairs, as the Crown has tlie option
of a forum where a subject has not. There is no peculiarity in the
case which would require the intervention of a jury, supposed to be
the especial guardian of popular rights, and a protection against the
encroachments of power. There is nothing of the kind to dread.
The Crown has to establish the fact of the owner's death without
heirs. When that is done the assertion of the right is not an injury
to any one having a lawful right, for there ia no such person, and no
prejudice is done to the people, for it is in their interest the right is
asserted.

The Act of Henry was principally a.med at escheats from other
causes than want of heirs. At that time the military tenures were
in full force, and the grounds upon which escheats were incurred
were numerous (3). Refusal to attend Superior Court, denial of

(1) Vol. 2, p. 258. (2) 1 Vict. c. 26, s. 6 ; 1 Wms. on Exors. G48, ed. 1867.

(3) See Hottoman, de feud, disp., c. 38, and his Lib. Feud, throughout;

Hume's Hist. I., 462,463.

100

PRIVY COUNCIL.

1883 t.enure, selling without license, etc., etc., and in such cases great

scope was given for oppression hy the escheators. None such now
exist, and even the theoretical principle upon which the Act was
based has ceased to operate. But I need not inquire into that now,
as the Ontario Act, which 1 assume to be effective, has substituted

' ■ another mode of procedure.

Pioudfoot, v.c. J think the demurrer must be overruled with costs.

ArroKNKY-

(Tr'.NKItAL

Jldoments of the Quebec Court of Queen's Bench— Appeal
SIDE — IN Attorney-General of Quebec v. Attorney-
General OF THE Dominion of Canada
(Church v. Blake).

[Reported 2 Qvehec Law Rep. 236.]
DoRiON, C. J.: —

Edward Fraser died at Fraserville, in the Province of Quebec, on
the 2nd day of February, 1874. He was not married ; he left no
heirs and no will. Under Article G37 of the Civil Code his estate
devolved to the Crown. However, sliortly after his death, one
Damase Caron was appointed curator to his vacant estate, under
Article 347 of the Code, and took possession of the property. The
Attorney-General for the Province of Quebec then instituted this
action to recover from this curator the property composing the
estate.

After the return of the action the Attorney-General for the
Dominion, acting also on behalf of Her Majesty, petitioned to be
permitted to intervene in the cauae to claim the estate. This peti-
tion being contested by the plaintiff, the parties were heard, and by
the judgment of the court below, the Attorney-General for the
Dominion was declared to be entitled to claim the estate and was
allowed to intervene.

The present appeal is from this judgment, and raises the impor-
t".'.nt (juestion, whether escheats belong to the Dominion or to the
Province wherein they arise ; for although both parties claim [237]
'p. I<'ra8er estate on behalf of Her Majesty, they in reality do so on
■'^.'.Alf and in the interest of their respective governments. In both
.ances they use the name of Her Majesty, but only as represent-
ing the public domain, that of the Duminion in one case and that of
the Province of Quebec in the other. The contestation being thus
submitted by the partie.s, it is unnecessary to inquire whether they

V:i*

PRIVY COUNCIL,

101

|impor-

to the

m [237]

80 on

In both

resent-

Ithat of

Ig thus

Ir they

are both right in assuming to proceed as they have done on behalf
of Her Majesty, and the only question which by the pleadings is
submitted to us is, whether the Attorney-General for the Dominion
has shewn any right to this estate, for if he has no right to it he has
no right to intervene in the cause. The title of the Attorney-
General for tlie Province of Quebec is not now in question.

It is unnecessary for the purpose of this case to inquire into the
origin of this right to escheats. It is sufficient that at the time the
B. N. A. Act, 18G7, was passed, they belonged to the Crown, as de-
clared by our Code, or more properly to the government of the late
Province of Canada, in whose favour Her Majesty had released that
portion of her revenue arising in the Province, in consideration of
the Civil List granted to Her Majtsty by the Act 9th Vict., c. 114.

The right of the late Proviuce of Canada to these escheats being
undoubted it only remains to ascertain whether it was reserved by
the Confedex-ation Act to the Provinces of Quebec and Ontario, or
attributed to the Dominion Government.

In the distribution of powers made by the Confederation Act
between the Dominion and the separate Provinces, the Dominion
Parliament has the control of all matters of a general character
.aflecting the whole Dominion. The Provincial Legislatures exercise
their authority over matters aflFecting the inhabitants of their respec-
tive Provinces only, and among the subjects to which their autho-
rity extends is the power of legislation as to rights of property and
civil rights in general (B. N. A. Act, s. 92, sub-s. 13).

The right to regulate the transmission of property by inheritance
falls within the powers of the Legislatures of the several Provinces,
as affecting rights of property and civil rights. For instance, the
Provincial Legislatures may restrict or extend the degrees of re-
lationship beyond which parties will cease to inherit ; they may, as
is the case in France, decree that in default of legitimate heirs the
estate of the deceased shall descend to his illegitimate offspring, [238]
or they may order that it shall revert to some educational or charita-
ble institution, and by their legislation they may materially aflfect
or destroy altogether the right to escheats.

Under sect. 102 of the Confederation Act, all the rights and reven-
ues which the Legishitures of the several Provinces had a right to
appropriate (except such as are by the Act reserved for the respec-
tive Provinces, or which are received under the special powers con-
ferred upon them by the Act) form part of the consolidated revenue
of Canada ; and by sect. 120, all the rights and revenues reserved to

1883
Attornet-

CtENERAF.

!•.

Mkkcek.

Attorney-
General
OF Quebec

Attorney-
Genkkal

OF the

Dominion.

Q.B., Quebec.

Dorion, C.J.

102

PKIVY COUNCir.,

1883

Attounkv-
Genkuai.

Mekcek.

Attorxkv-
Genehai.

of quebkc
c.

Attornky-
Genekai.

OF THE

Dominion.
Q.B., Quebec,
iJoriim, C.J.

'It'

tlxe Governments or Legislatures of the .'several Provinces, and all
the rights and revenues received by thoni under the special powers
conferred upon them form part of the consolidated revenue fund of
each Province. The property derived from the exercise of the right
of escheat constituted a revenue which, before confeder.ation, the
several Province.s had a riglit to appropriati". It would therefore
belong to the Dominion Government unless specially reserved to the
Provinces', or unless it came within the category of those rights
which are received in virtue of the special powers conferred liy the
Act upon the several Provinces. The only other sections of the Act
having reference to the distribution of the as.=<ets of the several Pro-
vinces are sects. 107, 108, 109, 113 and 117, together with schedules
3 and 4 anntxed to the Act. In none of these do I find that the
right to escheats is specially reserved to the Provinces, but from
what I have already said, escheats seem to come within that class of
revenues which are derived from the exercise of the powers specially
conferred on the Provincial Legislatures. If these Legislatures have
the power to enlarge or curtail the extent of this right by extending
or restricting the range of parties to whom the estate of deceased
persons may be transmitted, or if they can abolish it altogether,
then the existence of this right to escheats is subject to the autho-
rity of the Provincial LegislatU'es, and the revenue derived from it
is collected in virtue of the powers specially conferred on them by
the Act, since it depends upon their action whether this source of
revenue shall be maintained, and to what extent, or whether it
shall be abolished altogether. There is here no question of prero-
gative or of sovei-eignty, but a mere cpiestion of interpretation of
the B. N. A. Act, 1867.

The Court is unanimous in saying that the Dominion Govern- [239]
ment has no claim to the estate in dispute, and that the petition of the
Hon. Edward Blake, as Attorney-General for the Dominion, should
have been dismissed. The judgment of the Court below is therefore
reversed.

[Transhited]
Tessiek, J. —

This is a question of escheat. To whom uoes the property revert
of one who has died without heirs, in the Province of Quebec, where
he was domiciled, where he died, and where the property is situated ?
Is it to the Government of the Province of Quebec or to the Govern-
ment of the Dominion of Canada ?

In order to apply the laws of escheat, it is well to go back to their

PRIVV COUNCIL.

10:l

IHKH

ArroKNF.Y-
Gknkual,

Mkiu'kr.

ATT")KNKY-

Gknicu.m,
ok c^lkbeo

origin. These laws form part of the civil hiw, and escheat is only a
mode of succession, prescribed for the case of those who leave no
heirs, or which amounts to the same thing, such heirs only aa dis-
claim the inheritance ; in such cases, to follow the language of Arti-
cle 637 of our Civil Code, " the inheritance goes to the Crown," or
to use the words of Article 401, "such goods belong to the public
domain,"

It is plain that in our code, and also in our judicial language, there Attoknky-

, , , 1 ci • XI 11- Gknf.iiai.

is sometimes a strange abuse of the words tlie (Sovereign, the public qf tmk

domain, the Crown, Her Majesty the Queen, tlie domain of the Dominion.

State, as if these words were synonymous. This, however, is not Q.B., (2ufl)fc.

the case ; and very often the name of Her Majesty is used in widely Tessier, J.

diflferent senses.

The right of escheat was and is nothing more than a right of re-
version, so that property may return to the authority by whom it
was first granted out of the public domain. Thi.s authority, it is
allowed, is primarily represented by the Sovereign ; but has the
Sovereign, with the sanction of the Imperial Parliament, conferred
this right on others ? It is admitted that rights of escheat belonged
to Canada before confederation ; so that Her Majesty the Queen and
the Imperial Parliament had aUeady surrendered these rights to the
colony ; and the only question is, to which of the two (Governments,
Federal or Provincial, belongs the revenue accruing from this right
of escheat? — a question which must be decided by the construction
of the B. N. A. Act.

Sect. 102 says : " All duties and revenues over which the [240]
respeciive Legislatures of Canada, Nova Scotia and New Brunswick,
before and at the Union had and have power of appropriation, except
such portions thereof as are by this Act reserved to the respective
Legislatures of the Provinces, or are raised by them in accordance
with the special powers conferred on them by this Act, shall form
one Consolidated Revenue Fund, to be appropriated for the public
service of Canada."

Now in the foregoing clause we have an excoption, and is not
the revenue derived from escho.it among those included in that
exception, viz , amoug " such portions thereof as are reserved to the
respective Legislatures of the Provinces, or are raised by them in
accordance with the special powers conferred on them by this Act ?"
It seems to me that this exception is thoroughly supported by sects.
92, 109 and 117. Sect. 92 is headed, "Exclusive Powers of Provin-
cial Legislatures," and among these exclusive powers it is enacted,

104

PRIVY COUNCIL.

1883

Attorney-
(Iknkbal

r.
Mkrcek.

Attornkt-

Genkral

op qckbeo

Attornet-

General

OP the

Dominion.

(^B., Quebec,
Tessier, .1.

that in each Province tbe L' giulature may exclusively make laws
ill relation to " Property ami Civil Rights in the Province " (sub-
sect. 13), anil " The administration of justice in the province, in-
cluding tlie constitution, maintenance and organization of Provincial
Courts, both of civil and criminal jurisdiction " (sub-sect. 14). The
law of escheat is only a rule of civil law ; and the Legislature of
Quebec has exclusive power to ra>tke laws in regard to the degree
and mode of succession, so that there would be nothing to prevent
it from passing an Act to extend the right of succession to ille-
gitimate children or relatives, or even to such institutions as may
undertake the bringing up of illegitimate children.

This law of escheat has been handed down to us by Article 167
of the Coutume de Paris, which reads as follows : " When the owner
and occupier of an estate depirts this life without h irs, the High
Justiciary within whos« jurisdiction the estate is situated can lawfully
enter and hold such vacant and unoccupied es-tates."

If this right of escheat is considered an incident of the right of
the supreme administration of justice (de la haute justice), sect. 92
has given exclusively the administration of justice to the Provinces,
and the revenue accruing from, this right of escheat would go witli it.

If, on the other hand, the right of escheat is considered to be
an incident of territorial revenue, sects. 109 and 117 give both in
detail and generally the powers of the Provincial Legislatures over
the public lands and over all the accessory and incidental rev- [241]
enues derived therefrom.

Sect. 109 says, "All lauds, mines, mmerala and royalties belong-
ing to the several Provinces of Canada, Nova Scotia and New
Brunswick, at the Union, and all sums then due or payable for
such lands, mines, minerals or royalties, shall belong to the several
Provinces," &c.

And sect. 117, stating this power generally, adds, " The several
Provinces shall retain all their respective public property not other-
wise disposed of in this Act, subject to the right of Canada to
assume any lands or public property required for fortifications or
for the defence of the country."

This division of powers has au application to various ither
subjects. For instance, goods confiscated by force of the customa
laws belong to the Crown, to the Sovereign, that is to say, to the
Federal Government, which has the control of the subject ; but
unclaimed stolen goods, sold by order of the Court, belong like wise
to the Crown or to the Sovereign, that is to say, to the Local

PRIVY COUNCIL.

105

Goveniinent, and tho proceeds of siicli sales are nut returned to
the Ft'deral exchetiuer. Lands gained fionx the sea by accretion
or islands arising in waters within the boundaries of the Provinces
also belong to the separate Provinces.

It is vain, therefore, to argue on the ground that it is the Gov-
ernor-General and not the Lieutenant-Governor who i.«i the Queen's
representative. This is true in regard to the special attributes of
royalty which Her Majesty can delegate and confer by and in virtue
of her royal prerogative and instructions ; but it is not true in
regard to those matters over which Her Majesty tho Queen has
no longer any direct power, such as the public lands and the rights
of property, and civil rights in each Province. The name of Her
Majesty can be used in the administration of justice and to enforce
the rights ol property of the Provincial government, because this
is a pa- 1 of the sovereign authority confe-red on the Provincial
governments, .and which they have tlio right to exercise in the name
of Her Majesty. If the Provincial government, or its officers, or
the courts, were seen to drop the name of Her Majesty even in
civil actions brought by the Local government, exception might be
taken to this course, which, tbougli perhaps more correct in fact,
might be held to imply an independence which does not belong [242]
to our Provincial governments any more than to the Federal
government.

It is said that the Lieutenant-Govenior (loes not represent Her
Majesty in tho same way as does the Goveru' r-Genera). This is
true in a general sense, but not in regard to the special attributes
given to the Lieutenant-Governor by the Imperial Act. In these
he is as truly the representative of the Sovereign as is the Gover-
nor-General in those which belong to him ; otherwise Legislative
Councillors would be i)ers(m8 of more importance and nearer
royalty than the Lieutenant-Governor, because sect. 72 says they
shall " be appointed by the Lieutenant-Governor, in the Queen's
name," and those so appointed would find themselves above the
power which in reality selects them. This would be a curious
anomaly.

In the preamble of the Act of confederation it is declared, that
the Provinces have expressed their desire to be federally united.
This su])poses a federation of powers, a division of the powers
among the different Provinces, and a reservation of certain rights
to each Province of the confederation, in contrast with a legisla-
tive union in which all powers are concentrated in one Legislature

ArXORNKT-

(iKNERAI.

Mkuoer.

Attobnet-

Gknehal

OK (Quebec

Attornky-
Geneual

OF THE

Dominion.

C^.B., Quebec.

Teasier, J.

106

PUIVY COUNCIL.

Arri>i;\EV-

(Ikncuai.

ArnniNKV-
(Jknkkai,

lsS3 or Parliiiineiit. It is in virtue of tluH treiity of confodoration that

uacli Proviiico has preserved its particular rijjhts, amongst whicli
are to be found the exdnsivo rigiit to the public domain and the
domain of the State in each Province ; and among the incidents
of the public domain is to bo found the right of escheat, which
is subject to the judicial, legislative and executive control of the
OK <^i i.nK(; PiDvinco of Quebec. I am therefore of opinion that in the present
Attounky- instance, the property belonging to the vacant succession of
ok^thk' ^^^^ ^"-^^ Edward Frast-r, Esquire, whether real (U- personal, situated
Dominion, in the Province of Quebec, belongs to that Province, which is repre-
<i.B., (^uehtc. sented in this case by the Attorney-General of the Province, or in
m ~; T other words, to use a descriiition more dignified though not more

lc8sier, J. ' ' o in

correct, by Her Majesty's Attorney-General for the Province of

Quebec.

Ramsay, J.

If the technical (juestion insisted on at the argument were the
only one in the Cfise, it could scarcely give vise to any difficulty. In
defining the executive power the B. N. A. Act, sect. 9, declares it
to vest in the Queen ; and when we como to the legislative
power in sect. 58, it is declared to be vested in the Queen, the
Senate and the House of Commons. On the other hand, the execu-
tive power of the Provinces is declared to be vested in an officer [243]
called the Lieutenant-Governor, who is appointed by the Governor-
General (sect. (J9), and the legislative power of the Province of
Quebec is declared to be vested in the Lieutenant-Governor, the
Legislative Council and the House of Asseniblj-. This distinction
is kei)t up and the oflicers of the Pn)vinces are so designated (sects.
r>3 and 134).

Then as to the word "Crown,'' used in the Code, its interpreta-
tion can give rise to no difficultj'. T..(>, Orown means the Sovereign,
in wIkmu individually is V'. sted all tlie property of the Crown. Of
course, for the purposes of administraiioii, as the government
b' came mort^ fully organized, the revenues of the Crown had to be
a}>piopiiat».'d in dillerent ways, aid -o we have the Privy Purse and
the Civil List. In lik" mmner wd have the separate purses of the
ditFt;tent colonies ; and when we hear of t';e colonies claiming the
escheats as part of their revenue, they are only claiming that such
portion of the revenue legally vested in the Sovereign shall be
applied to colonial purposes.

The question we have therefore to decide is, to which of the two

I'HIVY COUNCir,.

107

[)reta-
|reign,
Of
iment
to be
c and
if the
the
such
LI be

two

j,'overniuon!9 have the Queen, Lcnls and CoininouH given eBcheals /
Tliis quostidn inv.lvos tlio exaniiiiaii"n of sects 102, 100 and 117
of the 15. N. A. Act. This Act yivcs rise to a .iifhculty of construc-
tion, wliic'.i iH-rhiips I may .^xagKoiMte but wliidi is woithy of con-
si'lcratii.n, and lint is the double enumeration which c nstantly
occurs. It is to bu found iirominently in suets. 91 ami !)2. Its
incoiivonioiice there did ml escape the observation of the framers
of the bill, fur they havo terminated sect. 01 by a saving clause (f
great importimce, wliicli makes sect. 92 subordinate to sect. 91. In
the sections we havo now to consider we have again the double enu-
meration, but without the saving clause in favour of either enumer-
ation. This sect. i02i'ivesto tlieDonunicm "all duties and revenues,"
"except such portions the'cof as are l>y this Act reserved to tlio
respective Legislatures of tlio Provinces," while sect. 117 gives to tlie
several Provinces "all their respective public property not other-
wise disposed of in this Act." What is included in "revenues?"
What is designated by " public property ?" Is 'he Dominion to have
all the revenues, and are the Provinces to own nidy the naked [244]
property / I see no mode of reconciling these two scction.s but by
referring to sect. 109. There we tind that by property is intended
" lands, mines, minerals and royalties." Now, what are "Royal-
ties?" In the largest sense of the word they arc all royal preroga-
tives. It is evident t'lat the word is not used in that sense, and it
m\ist be limited. But liow far ? It would be manifestly indefen-
sible to limit it to the royalties arising from mines of gold and
silver, and therefore it would seem fair to make it extend to all
those minor prerogatives of tha Crown which formed part of the
property of the Crown. This interpretation is open to objection ;
but it is obvious that the text of sects. 102 anl 117 cannot both be
maintained in their integrity ; and as they are both general sections,
and there is no saving clause, the interpretation should prevail
which is most in accordance with the other sectioiia of the Act. I
thhik, therefore, that the ajipeal must be maintained, am] the inter-
vention of the Minister of Justice be rejected.

Sanborn, J. : —

This case involves a question between the government of the
Province of Quebec and the government of the Dominion of Canada.
Elward Fraser died at Fraserville, in the Province of Quebec, on
the 2nd day of February, 1874, unmarried, and without heirs, and
intestate. Under Art. 637, C. C, his succession falls to the Crown.

ArrouNKY-
(Jknkual

Mkucku.

Attoiinky-
Oknkuai.

OF (^fKllKC

)'.
Attounky-

(iKNKKAI.
OK THi;

Dominion.

t^B., (iu<l).-c.

Ramsay, .1.

ii ;|

108

PRIVY CO UNCI L.

1883

Attokney-
Gknerai,

Mehcer.

Attoknkv-

Gbnerai.

of quebko

a.ttorney-
Grneral

OP THE

Dominion.

Q.B., Quebec,

Sanborn, J.

This ia oi.e ol the minor prerogatives of the Crown, which in
colonies having representative Legislatures b comes subject to local
legislation (Cb'lty on Prerogatives, p. 27).

The Sovereign's individual prerogative is aubuidinated to his
power as exoicised in Parliamtnl-.

This estate would undoubtedly have fallen into the consolidated
revenue had it become open before the federation of the Provinces
(see Con. Stat. Can., r 10, s. 5 ; also c. 16, s. 1). Tho question
here is, does it belong to the Province of Quebec or the Dominion
of C^anada ?

The first thing to be noticed is that this minor prerogative
came under the control of tho late Province of Canada, by
virtue of the power conferred on that Province over the subject of
property and civil rights within the Province. The personal prero-
gative of the Sovereign was yielded up to the Province, when the
royal assent was given to the Act 9 Vict., c. 114, which declares
that a Civil List is accepted by Her Majesty instead of all territorial
and other revenues at the disposal of the Crown, arising in the [245]
Province. The salary of the Governor-General and the salaries of the
Judges which comprised that Civil List have always been paid by
the colonial governments, .and the royal prerogtatives thus yielded to
the Province have never been withdrawn.

Under the 92nd sect., Il3tli sub-sect, of the B. N. A. Act, 18G7,
the power to legislate over the subject of property and civil rights
within each Province was given to the Legislature of the Province.
Under sect. 102 of said Act, it is provided that "all duties and
revenues, tn-er which the respective Legislatures of Canada, Nova
Scotia and New Brunswick before and at the Union, had and have
power ol' a})proi)riation; except such portions thereof as are by this
Act reserved to the respective Legislatures of the Provinces, or are
raised by ihcm in accordance with the special powers conferred on
them by this Act, shall form one Consolidated Revenue Fund, to be
appropriat* d for the public service of Canada," etc. Escheats, of
the nature of the one in question, are subject to the control of the
Provincial Legislatures. It is competent for the Parliament of
Quebec to establish the Law relating to descents, and it may amend*
modify or repeal, the article 637 of the Civil Code. It may bo said
that there is a limit to this power of Piovincial legislation over
property ; that it cannot enact that property which, by the Imperial
Act, is given to the Dominion, shall belong to the Province. This
is true, but the public property given to the Dominion is given in

PRIVY CO IT N CI ^

109

1807,
•ights
■ince.
I anil
Nova
have
this
ir are
!(! on
;o be
|ts, o!
ff the
lit of
leiid*
said
over
lerial
This
in in

Attorn K\-
Gkneual

Meboeh.

Attornky-

Genebal

of quebkc

express terms (aeci. 108), and specified in the 3rd schedule 1883

appended to the Act, such as canals, harbour-, etc. Over such
property the Provincial Legislature has no power to legislate, but
as liaving the power to legislate concerning j roperty, that is, private
property and civil rights, within the Province. The right to deter-
mine to whom the property of a person dying intestate without heirs
shall go is of the same nature as the law of descent, in fact it is a
pavt of the law of descent vvhic!), I presume, no one doubts pertains Attobnkv-
to the jurisdiction of the Provincial Legislatures. Escheats pro op'^thk'^
defectu sanguinis only go to the Crown with the same title as the Dominion.
person leaving them had. 4 Kent's Com. 427 ; Re Capt. Gordon, q.b., Quebec.
Foster's Crown Law, p. 95. This proves that the law governing „ 7~~ j

descents governs this subject. By sect. 100 of the same Act, it is

declared that "all lands, mines, minerals and royalties- belonging
to the several Provinces of Canada, Nova Scotia and New Srunswick,
at the Union, and all sums then due or payable for such lands, [246]
mines, minerals or royalties, shall belong to the several Provinces
(if Ontario, Quebec, Nova Scotia and New Brunswick, in which the
same are situate or arise." This covers all reversions as well as ex-
isting lands, miues, minerals and royalties. Escheats of the nature
of the one in question are royalties. See Brown's Law Dictionary,
p. 317, where he defines royalties to be rights and prengatives of
the King (1 Blackstone, 241).

Li the case of Dijke v. Walfard, decided in the Privy Council (1),
it was held that jura regalia include personal effects of a bastard
dying intestate, and go to the King. It may h't said that the word
royalties in this section is used in a more ret;', rioted sense, and by
it are intended rents or dues payable fo ■ the rigi:t of mining for the
precious metals. I see no restrn tion ii it, particularly as the same
reason that would give a class of royal pirquisites to the Province
where they arise would give all, and il 's iuore reasonable to inter-
pret the word in its primary than in its secondary and limited
sense, which is rather a meaning given to these royal rents by
miners, than the true sense of the word.

Li connection with the reasoning before adopte(' sect. 117 has
force which says; "The several Provinces shall retain all their
respective public property not otherwise disposed of in this Act,
subject to the right of Canada to assume any L-nds o»- public
property required for fortifications or for the deftiice of the

*1I

(1) 5 Moore P. C. 434.

■' f i

I.' ill

i :

-i

110

PRIVY COUNCIL.

1883
ArrouNEY-

GKN'KllAt,

c.
Mkiicer.

Atiukney-

(iKNERAL
(IK <iUEBEC

Attorney-

(iKNERAL
OK THE

Dominion.

(^B., Quebec

Sanborn, J.

couTitry." This in connection with sect. 108 and schedule 3, shews
what sort of public property is given to the Dominion and for what
purposes.

For these reasons the Coui't considers that the estate of Fraser,
if subject to escheat, falls to the Province of Quebec. There
is every reason why it should be so ; these escheats are of feudal
origin, and the land reverted to the feudal lord or to the Crown ;
and, as Broom in his Legal Maxims, p. 317, expresses it, *' This is
in accordance with the spirit of the ancient feudal doctrine expressed
in the maxim, Quod nuUiua est, est domini regis." All power which
, might at any time have existed in the seignior or sovereign over
lands or reversions of lands is now vested in the Province where
they are situated. This points to the reversion in case of lands.
As respects mcn'eables it is reasonable that the same result should
be. It harmonizes with the jiurposcs and objects of the law as
[247] indicated by the Act creating the two jurisdictions. The
general powers and revenues and public proj)crty of the Do-
minion bear much the same relation to those of the Provinces
that the United States bear to th'> several States, and it has never
been pretended that escheats pro dofeclu sanguinis became the pro-
perty of tlie United States. Tlie reversion, as well in personal as
real estate, has been always given to the State within which the
escheat arises. This is assumed as law in the case of Cross v. Dt-
F((//e in the Supreme Court of the United States (1). It will be
seen that the same reasoning has led to this conclusion as has been
'ilopted in this case. Cooley on Constitutional Limitations, p. 525,
speaking of eminent domain, says : " Under the peculiar Ameii 'an
system, the protection and regulation of private rights, privileges
and immunities in general, properly pertain to the State govern-
ments, and th(tse g(n'ernments ai"e expected to make piC"'«ion for
those conveniences and necessities which are usually provided for
their citizens through the exercise of eminent domain, the right
itself, it would seem, must pertain to those governments also,
rather than to the government of the nation, and such has been the
conclusion of the authorities."

The Court determines this (juestion as one between the Province
and the Dominion, although it is somewhat curiously presented,
one Attorney-General claiming on behalf of the Queen against
anotlier Attorney-General claiming on belialf of the Queen. We

(1) 1 Wallace 1.

PRIVY COJNCIL.

Ill

be
been
j26,

an
eges
vern-

for

for
light
also,

the

must understand tliis as a claim for the respective governments, and
we must understand by the Queen what Art. 637 of the Code means
by the Crown, not the Queen or the Crown, but one or other of the
governments, which we decide to be that ot the Province.

In doing this, we do not determine and do not Kud it necessary io
determine which government has tlie right to act for the Queen, or
whether both have. It is a question as to distribution of i ights and
privileges by the B. N. A. Act of 1807, and from careful study of
that Act, we think this minor prerogative belongs to the Province
where it arises. Hence the intervention of tne Attorney-General"
of the Duminiou of Canada must be dismissed.

[The formal judfjment ix as folhirs.]

Tlie Court of our Lady tlie Queen, now here, having heard the
appellant and respondent, by their counsel respectively, examined
as well the record and proceedings had in the Court below, as the
[248] reasons of appeal filed l)y the appellant and the answer thereto,
and mature <leliberations on the whole being had, considering that by
the admissions of the parties to the issue raised upon the interven-
tion tiled by the honourable Attorney-General for the Dominion of
Canada, acting in this behalf for Her Majesty the Queen, it appears
that the late Edward Fraser, whose estate is claimed by the Honour-
able Attorney-General tor the Province of Quebec, acting also in this
behalf for Her Majesty the Queen, died at Eiviere du Loup, in the
Province of Quebec, about the second day of Febraarj^, 1874, with-
out heirs and intestate, and according to the pretensions of both
parties, he left an estate which h:ith escheated to the Crown ;

And considering this is one of the sources of revenue which, as a
minor prerogative of the Crown, was yielded up to the respective
Provinces now confederated into the Dominion of Canada, prior to
the union of the Provinces of Canada, Nova Scotia and New Bruns-
wick, and that such escheats prior to said union formed part of the
revenues of tiie respective Provinces where they arose ;

And C(msidering that by the B. N. A. Act of 1867, such revenues
as were subject to the approjtriation of the respective Legislatures
of Canada, Nova Scotia and New Brunswick, and which are raised
by the several Provinces since the union, in accordance with the
special powers conferred upon them by that Act, belong to said
Provinces ;

Atul considering that as having jurisdiction over the law of descents
by virtue of its j urisdictiou over property and civil rights in the Pro-

188S
^— /— '

Attorney-
Gknekal

l>.
Meuc'kk.

Attouney-
Genkhai.

OF Ql'KIiKC

Attounky-
Geneual

OP THE

Dominion.

(^B., Quebec.

Sanborn, J.

fr*""-"

112

PRIVY COUNCIL.

1883

Attoknkt-
General

Mekcer,

Attorney-
General
OK (Quebec

Attorn KT-

Genebal

OF the

Dominion.

ii.li., Quebec

vince under said Act, the Legislature of the Province of Quebec is
invested with power to appropriate tliis casual revenue to itself ;

And considering that amongst other things, it is declared by the
said B. N. A. Act, ol' 1867, that all royalties belonging to the several
Provinces of Canada, Nova Scotia and New Brunswick, at the Union,
shall belong to the several Provinces of Ontario, Quebec, Nova Scotia
"and New Brunswick, in which the same are situate or arise, and that
escheats, such as the one in tinestion, are royalties ;

And considering that said estate is composed of real as well as
personal prope^^ty, and that all territorial Crown rights and privi"
leges possessed by the la*f^ Provinces of Canada, Nova Scotia and [249]
New Brunswick, before . le nnion thereof into the Dominion of
Canada, have been, at the , uuii, given to the several Provinces of
Ontario, Quebec, Nova Scotia *' l New Brunswick, and the Uw of
escheat, by reason of want of heirs, is of feudal origin, and cognate
with the law of tenures ;

And considering that by the general tenor of the Act of Union,
and the division of assets and revenues, it is manifest that a casual
local revenue, like the one in question, was intended to be left to
the local Province ;

And therefore, considering that there is error in the judgment
rendered in this cause, in the Superior Court, at Kamouraska, on
the twenty-ninth day of January, 1876, and now in appeal, in main-
taining the intervention of the honourable Attorney-General for the
Dominion of Canada, claiming said estate of the said late Edward
Fraser, as belonging to the Dominion of Canada and not the Pro-
vince of Quebec, doth reverse the said judgment, and proceeding to
render the judgment which tlie Court below ought to have rendered,
doth maintain the appeal of the Attorney-General for the Province
of Quebec, in this cause, and doth reject the petition of intervention
of said Attornev-General for the Dominion of Canada.

Judgment in Superior Court.

[Reported 1 Qvsbec Law Rep. , 1 77. ]

\Tra)islated.']
Taschereau, J. : —

The question for tlecision in the present case is : Do rights of
escheat, for want of heirs and the revenues arising therefrom, belong
under our Constitution to the Federal Government or to the Pro.
vincial Goveinments ?

piiivY couNC'ir>.

113

Attorney-
Genehal

Mercer.

Attorney-
General
OF Quebec

Attorney-
General
OF the
Dominion.

Sup. C,
Quebec.

It is plain that the decision which I have to give on tliis ptant is 1883

little more than a matter of form, and that a final decision to be
binding throughout the Dominion, must come from the Supi'eme
Court or the Privy Council. However, I must treat this question
and decide it as any other question raised before me.

Thougli I may regret that the two governments who arc parties
to this litigation have not thought themselves able to depart from
the usual course, but have come to a Coxirt of the first instance, yet
I certainly cannot complain of the labour which the case has re-
quired ; three pages of writing make up the record, and the decision
of the question seems to me easy. When the deceased leaves no
relatives within the degrees of succession, his property belongs to the
surviving husband or wife, and in default of such survivor the sue- Taschereau, J.
cession est acquise au souverain. The succession falls to the Crown,
the English version says. Such is our law as contained in articles
63G and 637 of the Civil Code.

Such was the law of old France on the point, such is also the law
in England where,moreover,escheat3 propter defectum sanguinis, be-
ng to the Crown.

It seems to me then usele.-s to enquire if this part of the law of
England as to the rights of the Crown, was imposed on us by the
conquest (see contra Attorney-Oen. v. Black (1), as to minor
jirerogatives).

It seems to me also unnecessary to refer to the feudal law, [1 80]
and to speak of the lord of the manor, or the lords high justiciaries
and their rights to escheated estates.

For us the lord of the manor, the high justiciary, is the Sovereign ;
and to the Sovereign alone do these successions belong. In what
light do these successions belong to the Crown? what is the nature
of these rights of escheat from failure of lawful issue 1 the answer
seems to me easy. These rights are appanages of the Crown, attri-
butes of sovereignty, forming part of the Sovereign's prerogatives
In England as in France these are minor prerogatives, minora regalia.
But tor the purposes of the present question, there is no difference
between these and the major prerogatives, majora regalia (Domat dr.
civ. des successions, liv. I. tit. 1. sec. 13 ; Domat. dr. public, liv. I.
lit. 6, sec. 3 ; Ferriere diet. v. regals. roy ; Merlin, Rep. v. butard ;
Ancien Denisart, v. desherenco, r«Jga'es ; Lebret de la Souverainte
liv. 3, ch. 12 ; Bacquet, dr. de Batardiso p. 120 ; Bacquet, dr. de

(1) Stuart's Rep. p. 324.

114

PRIVY COUNCIL.

\V\ I

1883

ArroiiNEY-
Genkual

Meucer.

Attoknk.y-

Gknekal

of qukhkc

Attorn EY-
Genkkal

OK THE
UOMINION.

Sup. C,
(Quebec.

Taschereau, J.

desherencc, p. 15G ; 1 Blackslone, book 1, ch. 7 and 8 ; 2 Blackstone^
book 2, ch. 15 ; 2 Steph< n's Comnieut, 528, 550 ; Chaluivr's Colonial
Opitjions, p. 142; Cliity on Prerogatives; Wharton's Law Lexi-
con V. escheat ; Bacon's Abridg, v. prerogative, pp. 48G, 495, 580 ; At-
torneij-Gcnend v. Kohhr (1) ; Weymouth v. Niujcnt (2) ; Ju re Bate-
maiis Trust (3).

I have said these riglits belong to the Sovereign. Now, under
our constitution, tlie sovereignty is at Ottawa. It is only there that
Her Maj(sty is directly represented. It is only in relation to the
Dominion that the 9tli sect, of the B. N. A. Act says ; "The Execu-
tive Government and authority of and over Canada is hereby
declared to continue and be vested in the Queen. " And when it
is a question of the legislative power, it is of the Federal Parlia-
ment only, and in ro sense of the Provincial Legislature, that the
Queen forms; a pi*: "There shall be one Parliament for Canada,
consisting of the Queen, an Upper House styled the Senate, and
the House >f Commons," says sect. 17 of the Act. This is in refer-
ence to the Fedeiu. Faviuunent. Now, are the Provincial Legisla-
tures composed of the Queen and one or two Houses ? By no
means. " There shall be a Legislature for Outario, consisting of
the LknietnuU-Gorenior and of (me House"; sect. 69. " There shall
be a Legislature for Quebec, consisting of the Lieutenant-Governor
and of two Houses"; sect. 71.

For the Parliament of the Dominion, the Queen, and two Houses ;
for the Legislature of Quebec, the Lieutenant-Governor and two
Ilnuses.

The Lieutenant-Governors in each Province sometimes act for [181]
and in the name of Her Majesty, in those exceptional cases where
the power is given by the B. N. A. Act. But the Governor-Gen-
eral alone is the direct representative of Her Majesty in and for
the whole Dominion, and t > him alone, as such representative, is
entrusted the exercise of the royal prerogatives, within the limils
fixed by the constitution (and this constitution for the Dominion
is partly written and partly unwiitten), either resulting from our
dependence on England, or still further prescribed by the special
instructions which Her Majesty is pleased to give him. There is
only one sovereignty for the whole Dominion, and this ";Overeignty
resides in the federal executive power.

Before confederation, each of the Provinces was invested with

(1) 9 H. L. C. 654. (2) 6 B. & S. 22. (3) L. R. 15 Eq. 355.

PRIVV COUNCIL.

115

kckatone,
Colonial
iw Lexi-
580 ; At-
i re Bate-

iw, under
here that
3n to the
a Execu-
8 hereby
d when it
1,1 Parlia-
, that the
r Canada,
mate, and
3 in refer -
,1 Legisla-
? By no
isistiug of
'here shall
-Governor

Houses ;
and two

;t for [181]
ies where
Irnor-Gen-
In and for
Intative, is
ihe limits
iDominioii
from our
16 special
There is
[>vereignty

^ted with
355.

this character of sovereignty ; but, in joining tlio federal union, each
of them made a full surrender to the central government of this
sovereif^nty, with its ^jrivileges, prerogatives, and attributes, as also
of the revenues proceeding fran the exercise of said privileges,
prerogatives, anil attributes. By the B. N. A. Act, 1867, has been
reconveyed to the separate Provinces by the central power, some
of these riyhts and revenues, and only from such leconveyance can
the Provinces derive their right and title (Beg. v. Taylor, 30 U. C-
Q. B.,p. 191).

This sovereignty of the federal government is the foundation
principle of our constitution ; the one which most particularly
distinguishes it from the constitution of the United States, in which,
AS we know, the opposite principle prevails. There each of the States
of the Union is qu.isi sovereign, each of the States has all the
rights, i)o\vBi'3 and privileges which it has not expressly surren-
dered to the general government. With us, the general govern-
ment has all the rights, powers and privileges, all the attributes
of sovereignty which, by the 15. N. A. Act, have not been expressly
reserved to the Provincial government. (Debates on Confederation,
pp. 33,34, 41, 404.) In regard to the prerogative of pardon for
instance : this prerogative, by the resolutions adopted by the Cana-
dian Parliament, was given to the Lieutenant-Governors in each
Province. But, as I think very wisely, the Imperial Parliament
wished to leave this prerogative to the Governoi'-General, to the
federal executive power. Now, is it said iu the Act, ' ' The prerogative
uf pardon shall belong to the Governor-GeneraU" Not at all. But
the clause was struck out, which, by way of an exception, gave this
privilege to the provincial executives, and so by the very silence
of tlie statute on this prerogative, it as well as others not expressly
reconveyed, remains with the executive power of the Dominion.

It is the same with the right of escheat. As the Act has not [182]
specially reserved it to the Provinces and the local authorities, it
belongs to the central power. Hence, if the right, the prerogative, be-
longs to the central power, it is plain that the resulting revenue must
belong to it also. Under our constitutional government, in England
as in Canada, the Sovereign surrenders to the people all its hered-
itary patrimony as Sovereign, and all the revenues attached to th&
Crown, and receives in exchange from its subjects a civil iist voted by
Pari lament, (1& 2 Vict. c. 2. Imp.) There revenues are united to what
is called the consolidated fund, of which they form a part. Upon this
fund the Parliament, on behalf of the people, charges all the publia

1883
Attopnky-

(iKNKRAL

Meuckr.

Attokney-

Gknkual

of Quebec

Attouney-

Gen'ekal

ok the

Dominion.

Sup. C,
Quebec.

Taschereau, J.

-Jj

116

PRIVY COUNCIL.

1883

Attohney-
Geneual

Mercer.

Attoknev-
Genkual

OK QlEISEC
V.

Attounet-
General

OK THE

Dominion.

Sup. C,
Quebec.

Taschereau, J,

1' i

;

1
1

r ■
i ^
i 1

1 ' t

expenses for which the Sovereign ia no longer liable. (Wharton's
Law Lexicon, V. Queen & Civil List ; 1 May's Const. Hist. p. 186
ef scr/; 1 Todd's Par. Gov. p. 167.)

But the civil list properly so callt-d is the sum voted to the
Sovereign personally for hia own use and that of the royal family,
and the royal household. The local Legislatures strictly .speaking do
not vote, and are not called upon to vote, a civil list, as was said at
the argument by the learned counsel for Quebec. Here the civil
list is regulated and established with the changes which the Act
itself allowed to be made therein by Con. Stat. Canada, c 10,
s. 2, as follows : " There shall be payable in every year to Her
Majesty, her heirs and successors, out of the Consolidated Revenue
Fund of this Province, a sum not exceeding £47,988, 15s. fid., for
defraying the expense of the several services and purposes named in
the following schedule A."

This schedule A comprises the aalary of the Governor-General.
And indeed atrittly speaking, so far as we are concerned, the whole
civil list consists in the salary of the Governor-General, payable by
the Parliament of the Dominion, and charged on the Federal Con-
solidated Fund by sect. 102 of the B. N. A. Act, as now fixed by
sect. 105 of this Act, and our own Act, 32-33 Vict. c. 74.

And in consideration of the sums fixed for the salary of the
Governor-General, and of the other charges on the civil list created
by the said Con. Stat. Canada, c. 10, sect. 5 of that Act provides :
" During the time for which the sums mentioned in the said schedule
are severally payable, the same shall be accepted and taken by Her
Majesty, by way of civil list, instead of all territorial and other reve-
nues at the disposal of the Crown, arising in this Province," . .
and the Act directs that these revenues shall form part of the Con-
[183] solidated Fund. Now among the royal revenues thus sur-
rendered to the former Province of Canada, are certainly included
estates accruing to Her Majesty by right of escheat ; and these
estates fall into the Consolidated Fund, and become subject to the
disjiosal of the said former Province of Canada.

Now by the B. N. A. Act, aU rights and revenues which before
the Union belonged to the Province of Canada, now belong to the
federal government, and form part of the Consolidated Fund of the
Dominion. There ia only one exception as to rights and revenues
pre-existing : that of the rights and revenues expressly reserved by
the Act itself to the Provincial Legislatures. Now it is plain, as I

PRIVY COUNCIL.

117

have already said, that tliis reservation has not been made as to
rights of encheat and the revenues derived therefrom.

*^ All duties and revemtes over whicli the respective LegialaturfS
of Canathi, Nova Scotia and New Brunswick before and at the
Union luid and have power of appropriation, except such portions
thereof (IS are by this Act reserved to the resjjective Legislatures of the
Provinces, or are raised by them in accordance with the special
powers conlerred on them by this Act shall form one Consolidated
Revenue Fund, to be appropriated for the public service of Canada,
in the manner and subject to the charges in this Act provided."
Sect. 102.

As to the Provinces : " Such portions of the duties and revenues
over which the respective Legislatures of Canada, Nova Scotia and
New Brunswick had before the Union power of appropriation as are
bij this Act reserved to the respective governmenfs or Legislatures of the
Provinces, and all duties and revenues raised by them in accordance
with the special powers conferred upon them by this Act, shall in
each Province form one Ct)nsolidated Revenue Fund, to be appro-
priated for the public service of the Province." Sect. 126. To the Con-
solidated Fund of the Dominion belong all the rights and revenues
which are not expres.sly given to the Pjovinces. To the Consolidated
Fund of the Provinces, nothing which is not expressly given them.

Edward Fraser died intestate in the Province of Quebec without
heirs or wife him surviving. The Government of Quebec claims
the estate from the curator, the Government of the Dominion, claims
that this estate reverts to it, and asks to be allowed to intervene in
the suit to oppose the claim of the Government of Quebec. This
right to intervene is opposed by the Government of Quebec, which
denies the claims of the Government of the Dominion.

For the foregoing reasons I pronounce in favour of the Govern-
ment of the Dominion.

1883

Attohnet-
Genkral

I'.
Meuckr.

Attorney-
General

OF t^UEBKC
V.

Attornky-
Geneual

OF THE

Dominion.

Sup. C,
Quebec.

Taschereau, J.

I si

TTT

118

PRIVY COUNCIL.

J. c*

1883

Nov. f>, '/;
Dec. 1.

The Colonial Building and Invest-
ment Association

I Defe

'endanta;

AND

The Attorney-General of Quebec .... Plaintiff.

On appeal from the Court of Queen's Bench for the Province of Quebec.

[Reported 9 App. Cas. 157.]

B. N. A. Act, 18G7, ss. 91, 92—37 Vict. c. 103, D. —Pmvcrs
of Dominion Parliament.

Held, That Canadian Act, 37 Vict. c. 103, which created a corpora-
tion with power to cany on certain definite kinds of business
wiihin the Dominion, was within the legislative comjietence of
the Dominion Parliameut. The fact that the corjjoratiou chose
to confine the exercise of its powers to one Province, and to
local and provincial objects, did not affect its status as a cor-
poration, or operate to render its original incorporation illegal
as ultra vires of the said Parliametst.

Held, further, tliat the corporation could not be prohibited gener-
ally from acting as such within the Province ; nor could it be
rostiaiued from doing specified acts in violation of the i)rovin-
cial law upon a petition not directed and adapted to that
purpose.

Loranger v. The Colonial Building and ha'estment Association (ante
vol. 2, p. 275) I'cversed.

Appeal from a judgment of the Court of Queen's
Bench (March 24, 188*2) (1) reversing- a judgment of the
Superior Court (July 9, 1881) in favour of the appellants

* Prcsejit .—Loun FrrzGEUALD, Sir Baiines Pbacock, Sir Montaqub
E. Smith, Sir Robert P. Collier, Sir Richard Couch, and Sir Arthur

HOBHOUBB.

(1) Post, p. 133.

PRIVY COUNCIL.

119

gener-
ic! it be

in the matter of a petition by the respondent for a declara-
tion that the appellants' association had been and was
illocallv formed and incorporated, and for an order dia-
solving the said association, and prohibiting the appellants { "^
from acting in future as such corporation.

The proceedings out of wliich this appeal arose were
instituted by the Attorney-General for Quebec, under
Alt. 997 and following articles of the Code of Civil Pro-
cedure for Lower Cana<la. They were commenced by a
petition in the nature of an information filed the 1st of
April, 1881, followed by an answer on the 7th of April,
1881. The association was incorporated by the Cana-
[158] dian Act, 37 Vict. c. 103. The pleadings, the Act,
and the provisions of the Civil Procedure Code on which
the proceedings were based, sufficiently appear in the
judgment of their Lordships.

On the 2-ith of March, 1882, the Court of Queen's
Bench (Dorion, C. J., Tessier, Cross and Baby, JJ.) delivered
judgment (Monk, J., dissenting), reversing the judgment
of the Superior Court, which had dismissed the petition
and quashed the writ, and instead thereof adjudged and
declared that the defendant company had and has no
right to act as a corporation for or in respect of any of
the operations of buying, leasing, or selling of landed
pro])erty, buildings and appurtenances thereof ; or the
purchase of building materials to construct villas, home-
steads, cottages, or other buildings and premises, or the
selling or letting of the same ; or the establishment of a
building or subscription fund for investment or building
purposes ; or the acting as agents in connection with such
operations as the aforesaid, or any like aflfairs, or any
matter of property, or civil rights, or any objects of a
purely local or provincial nature, in any manner or way
within the said Province of Quebec ; and prohibited the
said company irom acting as a corporation within the

18«3

Ll)KAN(iKll

Colonial

niNO AND

vkstmknt
Association.

Statkmknt.

-1 ;;!«!*

, -M

120

PRIVY COUNCIL.

1883 Province of Quebec for any of the ends or purposes nfore-
LoKANGKu siiid ; and Vurther condemned the company to pay the
Colonial plaintiff '^ho costs as well of the Court below as of the

BUILIUNC AND ,

lNVK.srMKNT appeal.
Association.

Statkment. Matthews, Q.C., and Ful/arton, for the appellant, said
' that the three main questions were, first, whether the
company was legally incorporated; secondly, whether it
is entitled to hold lands in Quebec, having regard to the
local law of mortmain ; thirdly, whether the judgment is
founded on the petition. As regards the first, see B. N. A.
Act, 1867, ss. 91, 92; CitizenH Insurance Cowpany v.
Parsons (1) ; a company like this could not be incorpor-
ated by any provincial Legislature. As regards the
second, this trading corporation would not under the old
French law have come within the definition of main
morte. The Civil Code of Lower Canada, arts. 364, 366,
made a difference, see The Chaudiere Gold Mining Com-
2jany v. Dcsharats (2). There are certain Building Acts
[lo9] of the provincial Legislature which are said to be
violated by this company ; but it is not a building asso-
ciation within the meaning of those Acts. It is admitted
that the appellant company may not acquire land con-
trary to the provisions of any local law ; but it is con-
tended that no such illegal acquisition is shewn, and if
shewn would not support the |)rayer of the petition. As
reg^ards the third point, the declaration and prohibition
pronounced by the Court are not those asked for by the
petiti(jn. They are not founded on the process before the
Court, and not relevant to the issues of law and fact
raised by the pleadings. The provisions of the Procedure
Code applicable to these proceedings shew that their
validity and the jurisdiction of the Court therein depend
upon and are limited by the information and the conclu-

(1) 7 App. Cas. 9f) ; atUe vol. 1, p. 2G5. (2) L. R. 5 P. C. 277.

PRIVY COUNCIL.

121

sions thereof ; and that the issues to be ti'ied and the proof is«3

to be adduced are siudlarly limited: see seets. 997, 098 louanokb

(amended by Quebec Act, 35 Vict. c. 6, s. 21), 999, 1114, coi-onial
1115.

Gihbs, Q.C., and Boddam {Girou'ird, Q.C., of the Cana-
dian Bar, with them), for the respondent, contended that
tlie appolUint company could do all it wanted provided it
obtained the consent of the local Legislatures : see Civil
Code, s. 358. Not having done so its acts are illegal, that
is, in violation of the local laws. The company is not
illegally incorporated — its powers are only incapable of
being exercised at present, this can be remedied. (SiR
Montague E. Smith : — The Attorney-General was bound
to lay distinct grounds*; having charged illegal incor-
puiation, can you convert that into a t<jtally distinct
charge ?) Reference was made to sects. 4 and 33 of the
Act under discussion. The words in the petition " with-
out being legally incorporated or recognised " are sufficient
to challenge illegality other than that of incorporation :
see sect. 997 of Civil Code Procedure. (Sir Barnes
Peacock : — The Court cannot in a proceeding like this
give an injunction ; it can only do one of two things
under sect. 1007 and sect. 1008.) Those sections must be
read with sect. 997. The object of the Act is to create a
building society for provincial purposes, and those pur-
poses cannot be effected without the aid of the provincial
Legislature, and in contravention of the Building Acts of
the Province.

[IGO] The counsel for the appellants were not called
upon to reply.

The judgment of their Lordships wns delivered by

Sir Montague E. Smith : —
This is an appeal from a judgment of the Court of

Jtl ll.niN'O ANI>

Invkbtment
asbociatiok.

Argument.

122

PRIVY COUNCIL.

ill!

J!:

(

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1 ' *

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lil

.L ..

1883 Queen's Bench of the Province of Quebec, reversing a

LoRANOER judgment of the Superior Court, which dismissed the

Colonial petition of the Attorney-General of the Province, praying

In^vestmknt" ^'*^^ ^^ ^^ declared that the appellant company had been

Association, illegally incorporated, and that it be ordered to be dis-

JuDGMKNT. solved, and prohibited from acting as a corporation.

The judgment now appealed from did not grant the
prayer of the petition, but gave other relief, in the manner
to be hereafter adverted to.

The Colonial BuiMing and Investment Association was
incorporated by an Act of the Parliament of Canada
(37 Vict. c. 103).

The preamble states —

That the persons thereinafter named " owners of real
estate in the city and di!>trict of Montreal, and elsewhere
in the Dominion, have petitioned for an Act of Incorpor-
ation, to establish an association to be called the ' Colonial
Building and Investment Association,' whereby powers
may be conferred on the said association for the purpose
of buying, leasing, or selling landed property, buildings,
and appurtenances thereof; for the purchase of building
materials, to construct an improved class of villas, home-
steads, cottages, and other buildings and premises, and to
soil or let the same; and for the purpose of establishing
a building or subscription fund, to which persons may
subscribe or pay in mon(!y for investment or for building
purposes, and from which payments may be made for
said purposes ; and also to act as an agency."

Sect. 1 incorporates the association.

Sect. 4 enacts that the association shall have power to
acquire and hold, by purchase, lease, or other legal title
any real estate necessar}'^ for the carrying out of its
undertakings ; to construct and maintain houses or other
buildings ; to let, sell, convey, and dispose of the said prop-
erty ; to acquire and use or dispose of every descripti n

PRIVY COUNCIL.

123

for

[161] of materials for building purposes ; to lend money 188
on security, by i^iortgage on real estate, or on Dominion or lobanqkr
Provincial Government securities, or on the stocks of colonial
chartered baiiks in the Dominion ; and to acquire, hold, ^f^vKSTMENT'*
and dispose of public securities, stocks, bonds, or deben- Association.
tures of any corporate bodies, and other defined securities. Judgmknt.
The clause provides that the association shall sell the
property so acquired within five years from the date of
the purchase thereof.

Sect. 5 enables the association to act as an agency and
trust company.

Sect. 1] provides that the chief office of the association
shall be in the city ul Montreal, and that branch offices or
agencies may be established in London, England, in New
York, in the United States of America, and in any city or
town in the Dominion of Canada, for such purposes as the
Directors may determine, in accordance with the Act ; and
that bonds, coupons, dividends, or other payments of the
association may be made payable at any of the said
offices or agencies.

The secretary of the association, the only witness called
in support of the petition, proved that the association had
bought lands, erected houses on such lands, and sold them,
and had also built houses on the lands of others, and lent
money on real estate. He stated that these operations
had hitherto been confined to the province of Quebec,
though effijrts had been made to extend the business of
the coaqmny to other [)rovinces, and to establish agencies
in Glasgow and New York, which had failed in con-
seq'v^ence of the inability of the association to raise sutB-
cient capital.

In order to understand the question which ultimately
became the principal one to be considered in this appeal,
viz., whether the judgment of the Court of Queen's Bench
is properly founded upon the Attorney-General's petition,

HI
it}

I f

II;

124)

PRIVY COUNCIL.

1883 it is necessary to refer to the provisions of the Code of
LoKANGKR Civil Procedure of Lower Canada on which the proceed-
CoLONiAL ^^^^ ^re based, the scope and prayer of the petition, and
^^vKaxMENT^ ^^^^ nature and form of the judgment appealed from.
Association. The heading of chapter 10, sect. 1, of the Code is, " Of
Judgment. Corporations illegally formed, or violating or exceeding
their powers."

[162] Art. 997 is as follows :—

" In the following cases, —

"(1) Whenever any association or number of persona
acts as a corporation without being legally incorporated
or recognised ;

" (2) Whenever any corporation, public body, or board,
violates any of the provi.sions of the Acts by which it is-
governed, or becomes liable to a forfeiture of its rights, or
does or omits to do acts the doing or omission of which
amounts to a surrender of its corporate rights, privileges,
and franchises, or exercises any power, franchise, or privi-
lege which does not belong to it, or is not conferred upon
it by law, it is the duty of Her Majesty's Attorney-
General for Lower Canada to prosecute in Her Majesty's
name such violations of the law whenever he has good
reason to believe that such facts can be established by
proof in every case of public general interest, but he is
not bound to do so in any other case unless sufficient
security is given to indemnify the Government against all
costs to be incurred upon such proceeding ; and in such
case the special information must mention the names of
the person who has solicited the Attoi-ney- General to tak&
such legal proceedings, and of the person who has become
securitv for costs."

Art. 998 (as amended) reads : —

" The sununons for that purpose must be preceded by
the presenting to the Superior Court, or to a judge, of a
special information containing conclusions adapted to the

PRIVY COUNCIL.

125

nature of the contravention, and supported by an affidavit 1883
to the satisfaction of the Court or jndge, and the writ of Lorangeb

summons cannot issue upon such intorniation without the Colonial

Building and

Investment
Association.

authorization of the Court or judge."

The material allegations of the petition filed by the
Attorney-General are the following : —

" That the ' Colonial Building and Investment Associa-
tion' for years past have been and still are acting as a
corporation in the city of Montreal, and elsewdiere, in *he
Province of Quebec exclusively, and as such, over since
the date of its existence hereinafter mentioned, have been
[103] buying, leasing, and selling landed property, build-
ings, and appurtenances thereto, constructing villas, home-
steads, cottages, and other buildings, and selling and
letting the same, and have also been lending money on
security by mortgage or hypothec on real estate in this
province, the whole without being legally incorporated or
recognised.

" That the operations and business of the said associa-
tion have been limited to the Province of Quebec, and
being, moreover, of a merely local or private nature in the
said province, and having provincial objects affecting pro-
perty and civil rights in the said province, the said associa-
tion could not lawfully be incorporated, except by or
under the authority of the Legislature of the Province of
Quebec.

" That the said association was incorporated by the
Parliament of Canada, in the year 1874, 37 Vict. c. 103,
and has ever since been in operation under the said Act
of incorporation which, for reasons above alleged is null
and void and of no etfect, the said Act of incorporation
being ultra vires.

" Wherefore your petitioner prays that a writ of sum-
mons upon the affidavit hereto annexed be ordered to
issue in due course of law, and that the said defendants

Judgment.

>,i

"'.41

126

PRIVY COUNCIL.

1883

Fl !

' r

ill

r I

LORANGKR

II.
COl.ONIAIi

Association,
judgmknt

i
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1
I

1 !

be adjudged and declared to liave been, and to be illegally-
formed and incorporated, and that the said illegal associa-
tion may be ordered to be dissolved, and be declared
^iNVEsraKNt" (lissolved, and finally, that the defendants be prohibited
from acting in future as such corporation, the whole with
costs distraits to the undersigned attorneys."

The petition was verified by affidavit, as required by
the Code, and thereupon an order for a writ of summons
against tlie company w o issued by a judge.

The petition also alleges that it was presented at the
solicitation of John FJ etcher, a shareholder of the com-
pany, who had become security for costs. It appears that
Fletcher was in default in payment of his calls, but in the
view their Lordships take of the case any further refer-
ence to this relator becomes immaterial.

The broad objection taken by the Attorney-General in
the petition is, that the association vras not legally in-
corporated, the statute incorporating it being ultra vires
of the Parliament of the Dominion.

[1(34] The judgment of the Superior Court, given by Mr.
Justice Caron, distinctly overruled tliis objection. Mr.
Justice Tessier is the only Judge of the Court of Queen's
Bench who affirmed it. Chief Justice Dorion, in a judg-
ment which received the concurrence of two other judges,
acknowledged that having regard to the observations of
this Board in the case of The Citizens' Insurance Com-
pany of Canada v. Parsons (1), it could not be held that
the incorporation of the association was beyond the powers
of the Dominion Pail lament, and illegal ; and the majority
of the Court gave judgment upon the assumption, as their
Lordships understand the reasons of the Judges, that the
association was lawfully incorporated. The conclusion
of the formal judgment of the Court is as follows : —

" That ohe said company, respondents, had and have no

(1) 7 App. Cos. 90 ; ante vol. 1, p. 265.

PRIVY COUNCIL.

127

riglit to act as a corporation for or in respect of any of 1883
the said operations of buying, leasing, or selling of landed lokanger
property, buildings, and appurtenances thereof, or the pur- colowt*!
chase of building materials to construct villas, homesteads, Butloino and-
cottage-1, or other buildings and premises, or the selling or association.
letting of the same, or the establishment of a building or Jcdgmekiv
subscription fund for investment or building purposes, or
the acting as agents in connection with such operations
as the aforesaid, or any like affairs, or any matter of prop-
erty or civil rights, or any objects of a purely local or pro-
vincial nature, in any manner or way within the said
Province of Quebec, and doth prohibit the eaid <;ompany,
respondents, from acting as a corporation within the said
Province of Quebec for any of the ends or the purposes
aforesaid."

Mr. Justice Monk, in a short but clear judgment, dis- ^
sented from his colleagues, and agreed with Mi'. Justice
Caron's judgment.

Tlieir Lordships cannot doubt that the majority of the
Court was right in refusing to hold that the association
was not lawfully incorporated. Although the observations
of this Board in the Citizens' Insurance Company of
Canada v. Parsons (1), referred to by the Chief Justice,
put a hypothetical case by way of illustration only, and
[1()5] cannot be regarded as a decision on the case there
supposed their Lordships adhere to the view then enter-
tained by them as to the respective powers of the Domi-
nion and Provincial Legislatures in regard to the incor-
poration of companies.

It is asserted in the petition, and was argued in the
Courts below, and at this bar, that inasmuch as the associa-
tion had confined its operations to the Province of Quebec,
and its business had been of a local and private nature, it
followed that its objects were local and provincial, and con-

• ,h

(1) 7 App. Cas. 90 ; ante vol. 1, p. 205.

U'.>

' (

128

PRIVY COUNCIL.

1883 sequently that its incorporation belonged exclusively to
LoBANQEH ^^G provincial Legislature. But surely the fact that the
Colonial association has hitherto thought fit to confine the exercise
BuiLDiNQ^AND q£ jjg pQwcrs to ouc provlucc cannot affect its status or
AaaooiATioN. capacity as a corporation, if the Act incorporating the asso-
JuDGMKNT. elation was originally within the legislative power of the
Dominion Parliament. The company was incorporated
with powers to carry on its business, consisting of
various kinds, throughout the Dominion. The Parliament
of Canada could alone constitute a corporation with these
powers ; and the fact that the exercise of them has not
been co-extensive with the grant cannot operate to repeal
the Act of incorporation, nor warrant the judgment prayed
for, viz., that the company be declared to be illegally con-
stituted.
, It is unnecessary to consider what remedy, if any, could

be resorted to if the incorporation had been obtained from
Parliament with a fraudulent object, tor the only evidence
given in the case discloses no ground for suggesting fraud
in obtaining the Act.

Their Lordships therefore think that the Courts in
Canada were right in holding that it was not competent
to them to declare, in accordance with the prayer of the
petition, that the association was illegally incorporated,
and ousrht to be dissolved.

There remains the question, which was mainly argued
at the bar, whether the judgment of the Court of Queen's
Bench which, shortly stated, declares that the association
has no right to act as a corporation in respect of its most
important opfations within the Province of Quebec, and
prohibiting it from so acting within the province, can be
sustained.

It was not disputed by the counsel for the Attorney
General that, on the assumption that the corporation was
[16G] duly constituted, the prohibition was too wide, and

PRIVY COUNCIL.

120

ea:braced some matters which might be lawfully done in
the province, but it was urged that the operations of the
company contravened the provincial law, at the least, in
two respects, viz., in dealing in laud, and in acting in con-
travention of the building Acts of the province.

It may be granted that, by the law of Quebec, corpora-
tions cannot acquire or hold lands without the consent of
the Crown. This law was recognised by this Board, and
held to apply to foreign corporations in the case of the
Clmudih^e Oold Mining Company v. Desbarats (1). It
may also be assumed, for the purpose of this appeal, that
the power to repeal or modify this law falls within No. 13
of sect. 92 of the B. N. A. Act, viz., " Property and Civil
Rights in the Province," and belongs exclusively to the Pro-
vincial Legislature; so that the Dominion Parliament
could not confer powers on the company to override it.
But the powers found in the Act of incorporation are not
necessarily inconsistent with the provincial law of mort-
main, which does not absolutely prohibit corporations from
acquiring or holding lands, but only requires, as a condition
of their so doing, that they should have the consent of the
Crown. If that consent be obtained, a corporation does
not infringe the provincial law of mortmain by acquiring
and holding lands. What the Act of incorporation has
done is to create a legal and artificial person with capacity
to carry on certain kinds of business, which are defined,
within a detined area, viz., througliout the Dominion.
Among other things, it has given to the association power
to deal in land and buildings, but the capacity so given
otily enables it to acquire and hold lands in any province
consistently with the laws of that province relating to the
ac(jiiisition and tenure of land. If the company can so
acquire and hold it, the Act of incorporation gives it cap-
acity to do so.

1883

LOKANOEB

Colonial
Building and

Investment
Association.

Judgment.

i'm

pf'f

,-i

(1) L. R. 5 P. C. 277.

130

PRIVY COUNCIL.

i I

♦ ff

•

1
1
1

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i I

:( l|:h

1:1,

1883 It is said, however, that the company has, in fact,

LouANGEii violated the law of the province by acquiring and holding
Colonial ^^'^^^ without having obtained tlie consent of the Crown.

^im-EsTMENx^ ^^ "^^y^ ^® ^^> ^"^ ^^^^ ^^ ^^^^ ^^^^ ^^^^ made by the petition.
Aa.sociATioy. Proceedings founded on the alleged violation, by a corpora-
JuDOMENf. tion, of the mortmain laws, would involve an inquiry open-
[107]ing questions (some of which were touched upon in tlie
arguments at the bar) regarding the scope and effect of
these laws, the fact of the Crown's consent, the nature and
sufficiency of the evidence of it, the consequences of a
violation of the laws, and the proper parties to take advan-
tage of it; questions which are certainly not raised by
the allegations and conclusions of this petition.

So with respect to the objections founded on the Acts
of the Province with regard to building societies. Chief
Justice Durion appears to be of opinion that, inasmuch
as the Legislature of the Province had passed Acts relating
to such societies, and defined and limited their operations,
the Dominion Parliament was incompetent to incorporate
the present association, having for one of its objects the
erection of buihlings throughout the Dominion. Their
Lordships, at present, fail to see how the existence of these
Provincial Acts, if competently passed for local objects,
can interfere with the power of the Dominion Parliament
to incorpoi'ate the association in question.

If the association by its operations has really infringed
the Provincial Building Societies Acts, a proper remedy
may doubtless be found, adapted to such a violation of
the provincial law; but, as their Lordsiiips have just
observed, with reference to the supposed contravention of
the mortmain Acts, that is not the case made by the
petition.

It now become.'^ material to examine more closely' tlian
has hitherto been done the allegations and conclusions tlie
petition really contains. The first paragraph, after stating

fact,

|frinii;ed
remedy
Uion of
TQ just
itioii of
)y the

ly til an

)ns the
stating

PRIVY COUNCIL.

181

that the corporation carried on its operations in Quebec 1883
exchisively, concludes thus : " the whole without being lokanoeb
legally incorporated or recognised." Colonial

The second paragraph avers that the operations of the ^i;^'^^'^^ ^^^
company being confined to Quebec, and being of a merely A««ociation.
local nature, affecting property and civil rights in tlie Judgment.
province, " could not lawfully be incorporated except by
the authority of the Legislature of the Province."

The third paragraph alleges that, for these reasons,
" the Act of incorporation is null and void, the said Act
of incorporation being ultra vires."

The conclusion and prayer based on these allegations
[1G8] are, that the association be declared to be illegally
incorporated, be declared dissolved, and prohibited from
acting in future as a corporation.

it eems to their Lordships it would be a violation not
only of the ordinary rules of procedure, but of fair trial,
to decide this appeal upon a new case which, assuming a
lawful incorporation, rests on the supposed infringement
of the laws of the Province by the company in conducting
its operations. This is not the wrong struck at by the
petition, but a wrong-doing raising issues of a wholly
different character to those to which the allegations and
conclusions of the petition are alone directed and adai)ted.
It is to be observed that the inquiries made of the com-
pany's secretary were of a general nature, and mainly
directed to support the allegation in the petition that the
company's operations had been limited to the Province of
Quebec. No investigation of the title to any of the lands
it held, nor of any j)articular transaction, was gone into
at the hearing.

The 998th article of the Code of Civil Procedure re-
(luires that the summons to be issued " must " be preceded
by a petition to the Court containing " conclusions
)ted to the nature of the contravention," to be sup-

182

PRIVY COUNCIL.

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1883 ported b}' aa tiffidavit ; and provides that the summons

LoKANGER cannot he issued upon such information without the

Colonial authority of a judge. It is quite phiiu that the conchi-

'investment" ■'^i^"« ^^ t'J'i'^ petition are not adapted to the case now

A8?<ucLvnoN. i-fjlied on by the Attorney-General ; so that neither the

JiuuMENT. general principle regulating procedure nor the special

requirements of the Code allow of its being set up on

these proceedings.

It' the company is really holding property in Quebec
without having complied with the law of that province,
or is otb.erwise violating the provincial law, there may lie
found proceedings applicable to such violations; though
it is not for their Lordships to anticipate them, or to
indicate their form.

It should be observed that their Lordships, in the case
supposed in their judgment in the appeal of the Citizens
Lisurance Company, in regnrd to corporations created by
the Dominion Pariia-uent with power to hold land being
subject to the law of mortmain existing in any province
in which they sought to acquire it, had not in view the
[109] special law of any one Province, nor the question
whether the prohibition was absolute, or only in the
absence of the Crown's consent. The object was merely
to point out that a corporation could only exercise its
powers subject to the law of the province, whatever it
might be, in this respect.

It was argued that the judgment of the Court nf
Queen's Bench might be sustained by the part of the
prayer which asked that the company "be prohibiteil
from acting in future as a corporation within the Pro-
vince of Quebec" for certain purposes. But the pruhihi-
tion is asked as consequential ui)on the declarations prityed
for, and when these are refuse<l, there are not only no
declarations, but no allegations in the petition to sustain
it. It has been seen that the prohibition contained in the

■ I

PRIVY COUNCIL.

133

d being

iu(l<'inent of the Court of Queen's Bench is not an injunc- i^'*:^
tiou limited to rcstmininij the company from doing sped- Loranhkr
tied acts in violation of particular laws of the province, colonial
Imb is a <i;eneral prohibition founded on a declaration '\'|vvistvint"
introduced by the Court, other than those prayed for, •^>"<"« 'ATLoy.
that the company has no right to act as a corporation in -Tvim^iknt.
dealing with lands and buildings, and certain other matters
within the province. This, declaration, with the prohibi-
tion founded on it, is obviously too extensive, A prohibi
tion in these wide and sweeping terms would prohibit the
company fron\ acquiring or dealing in lands, though it
hud the Crown's consent, and eoiild only be warranted by
nlHriningthe invalidity of the Act of incorporation, which
would be oppor.ed to what has been stated in the previous
part of this judgment to be their Lordships' view; or at
least by affirming that the company, in exercising its
powers in the province, must necessarily violate the pi'o-
vincial law, which, as already shewn, is not a necessar}'
consequence.

In the result, their Lordships will humbly advise Her
Majesty to reverse the judgment under appeal, and to
order that the judgment of the Sui)erior Court bo affirmed,
and that the present appellant's costs of the a|)peal to the
Court of Queen's Bench in Canada be paid b;y the present
respondent. The appellant must also have the costs of
the a|)peal to Her Majesty.

^1 *

'Ai

Judgments in Quebec Court of Queen's Bench (I).

Monk, J : —

I regret I cannot concur in the judgment about to be rendered l)y
tlie Court. I would without hesitation contirui the decisit)u rendered

(1) [The formiil judgment of the
C'nurt of Queen's Bench is reported
ante vol. 2, p. 275. The reasons of
the judges here given are from the

Record of Proceedings printed on
the appeal to the Privy Council, for
a copy of which the editor is in-
debted to Mr. Girouard, (^.C]

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1H83 by tlio Superior Court. The ground of complaint as sot forth in the

, ~'~' int'iirniation is "That the operations and business of the said a-ssocia-

LOUANOER '

r. tion havo been limited to the Province of Quebec, and being inore-

Bciliiing'ani) '*^*^'' "^ a merely local or private nature in the said Province and

Investment having provincial objects affecting property and civil rights in the

Association. . , t, V ,, • , • f 1 1 . i .• i, u •

.. _ Saul Province, the said association could not lawtully be incor-

Q.B. , Qu ebec, porated except by or under the authority of the Legislature of the
Monk, J. Province of Quebec."

It is not pretended that the law as passed by the Dominion Legis-
lature was or is ultra vires the contention is that the company
having commenced business in the Province of Quebec by virtue of
the statute in ({uostion renders the law inoperative, and that the
association should be dissolved, and to do so this Court must
declare it to havo been illegally fijrnied and incorporated. Now
there can be no doubt whatever that the enacting of this law was
exclusively within tiie powers and juris liction of the Federal Parlia-
ment. Tins view of the case is not disputed even by this Court,
but it is ur^ed that because the company has not so far extended
its operations to tlie full limits of its corporate authority, the Act is
therefore, they contend, ultra vires and the company should be dis-
solved. This appears to be a most extraordinary idea. I cannot
concur in adjuflging that the partial or an incipient comjtliance with
a statute would authorize this Court in setting it aside ; so long is
the law stands and is unassailable by Courts of Justice and the cor-
poration has a It gal existence, we cannot interfere. Tiie Dominitm
legislature probably foresaw that tli.- important operations of the
company w-uld Inne to hive a commencement somewhere nnd why
not in the Province of Quebec, as well as elsewhere i I see no reason
for such a view of this matter. Should the company wholly fail in
the futiu'e to fulfil reasonably the obligations imposed on it and
thereby frustrate the objects of the Legislature, the Federal Parlia-
ment can and probably would take some action should .siujh .1 011-
tingcncy arise, but at present it appears to me thi'^ •"' j*not

interfere.

!!'

[Translated.]
Tessier, J. : —

A writ of quo warranto, issued at the instance of the Attoi-ney-
General of the Province of Quebec, addressed to the association who
are the defendants herein, and who ai*e incorporated by virtue of an
Act of the Parliament of Canada of 1B74, 37 Vict. c. 103.

PRIVY COUNCIL.

135

Tho allogations are well summed up in the very words of the 1«HH
Dotitioii wliich alloKt's : "That tho opurations and business of the
said association have buon limited tt» t!:o Province of Quebec, and v.

lieing moreover of a merely local or i)vivate nature in tho ."aid Prov- ij|||"|,'ij,--''\'jjn
iiii'o, the "aid association could U'lt lawfully be incorporated except In'vkhtmknt

by or under the authority of the legislature of tho 1 rovmce of

Quebec." Q.B., C^icIk'c.

Tho conclusions flow necessarily from the premises and are as Tessier, J.
follows : That tho associati' m be adjudged and declared to have been,
and to be illegally formed and incorporated, and " that the said
illigal association may be ordered to bo dissolved and be declared
dissolved," ami finally that the defenduuts be prohibited from acting
in future as such corporation, with costs.

It is alleged in the petition that this Act of incorporation is ultra
vins of tho Parliament of Canada.

The association reidied that its Act of incorporation was within the
juiisdiction of the Parliament of Canada, because it was thereby
authorized to exercise powers and privileges, and to act and contract
in all the Provinces of the Confedetation.

According to the evidence and the admissions it appears that this
associatii n has limited its operations to the Province of Quebec, but
that is not the point in issue. The re il question is whether the
oijcrations which the associaticm is authorised to carry on by virtue
of its Act of incorporation are among those which are within the
exclusive jurisdiction and powers of the local Legislature of Quebec.

Section '.)2 of the confederation Act says that, " in each Province
the Legislature may exclusively make laws in relation to matters
coming within the classes of subjects next hereinafter enumerated,"
inter alia.

No. 10. "Local works and undert.akings."

No. 13. '* Property and civil rights in the Province."

No. 16. " Generally all matters of a merely local or private nature
in the Province."

Let us now see what are the powers conferred on this association.

The jn-eamble of the statute indicates the principal object; "To
buy, lease or sell landed property, buildings and appurtenances.

Sections 4, 6, 6 and those which follow particularise and formulate
til ' powers : " to buy, sell, and rent lands and buildings . . .
to erect and build houses, to acquire and sell l-uildiiig materials
. . . to own mortgages and securities, to mortgage and lease
real estate."

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PRTVY COUNCIL.

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1883 By sections 13, 20, 27, 33, 34, 36, 37, 39 and 40 rules of civil

""""' procedure and rules concerning property and civil rights, and the

/). form and effects of contracts are established. It is evident that all

BuiLDiNC! Vnd tli*^8e matters fall within the exclusive jurisdiction of the Legislature

INVKSTT.F.NT of Quebec.
Association.

— . However, the defendants object, that by sect. 11 they have .a ught

Q.B. , Qu eoec. |.,, egt-iblish branches or agencies in all the towns of Canada, at

Tessier, J. Loudon also in England, and at New York in the United States of

America, and that only the Parliament of Canada can confer this

right. This is a mistake, the Legislature of Quebec can just as well

create an association or legal person of this kind ; the power conferred

on this private corporation of establishing an agency at London or

at New York, belongs to it, n.i it belongs to every individual wliat-

soever, provided he submits to the laws of the country in wuich he

establishes that agency. In like manner a corporation created by

the Lcgii^lature of Quebec, has a right to carry on business at Toronto,

provided it submits to the laws in force in the Province of Ontario.

It is necessary, then, to consider two thiiig:^ in the creation of cor-
porations ; 1st, the privilege of being constituted a corporation
which power is common to the Federal Parliament and to the Pro-
vincial Legislatures ; 2ud, the object and nature of the powers of
the corporation so created. It is at this point that in certain matters
a division is made between tlie jui'isdiction of the Provincial
Legislatures and that of the Federal Parliament.

Ill the case of i> written constitution such as ours, the distribute -n
of powers is subject to the interpretation of the Courts in order to
keep the Federal Parliament and the local Legislatures within tlie
limits of their resi)ective powers.

Suppose a statute like- the present hc^d been passed by the Legis-
lature of Quebec, could it be maintained that it was ultra virts ?
It would bo a retinement to contend that because there is a
question abuut debentures and interest coupcjiis, the Act is
witi.iin the powers of the Fi'deral Parliament ; that is not the main
object of the statute, but only an accessory to the main object, and
that accessory becomes subject to the general laws of Canada.

If the statute in ijut-stiou is witliin the competence of the Parlia-
ment of Canada, one may reflect on the hundreds of statutes of the
provincial legislatures incorporating companies for Miining phosjih-
ates, for manufacturing cloth, ootton, shoes, colonisation, land
imprcjvements, and land comjtaniefi, and say, that provided it is said
that these companies can have a branch or agency at Toronto and at

PRIVY COUNCIL.

137

Quebec, or at New York and London, they fall under the jurisdiction 1883

of the Federal Parliament. t '~^

Loran(;ek

Tlie judgments lately delivered by the Privy Council in England v.

give us rules of interpretation which can be applied in the present Building! and

case. In Citize-ns Iiis^ira nee Cumpami v. Parsons (1) the Judges of Investment
~ ., . „ " , , . 1 . Association.
tho Privy Council said : " Notwithstanding this endeavour to give

pre-eminence to the Dominion Parliament in cases of a conflict of ^•>_'^"^^'''-''

powers, it is obvious that in some cases whero this apparent conflict Tessier, .1 .

exists, the (Imperial) Legislature could not have intended that the

pinrers exclmivehj assig ipil to the Provinci.l Legislature should be

aboorbea in those givt^i to the Dominion Parliament . ... .

Li these cases it is the duty of the Oiairts, however difficult it

may be, to ascertain in what degree, and tf) what extent, authority to

'leiii with matters falling within these classes of subjects exists in

each Legislature, and to define in the particular case before them

tlie limits of their respective powers."

From all this we must conclude that the creation of a corporation
for objects relating to or exten<ling to property and civil rights falls
exclusively under the control of the local Legislature, and that to
remove it therefrom the f)bject of incorporation must be one, so
to say, of interprovincial law, that is to say, one in which the Federal
Parliament has the right to establish the rules of civil right and of
property in all the Provinces in a uniform manner.

Now in the Province of Quebec, corporations have not the power
of possessing or mortgaging property, except by a special law,
ameiiiliiig in that respect the civil laws relating to property. It
wduld then be an interference with our laws of property, if the Parlia-
imiit of Canada coukl control, modify or change them as has been
done by this statute. It is the local Legislature which has this
exclusive right.

Wc must then declare, that this statute is ultra vires of the
Federal Parliament, and that the I'orporation in quedtion is dissolved.
It still has the power of applying to the local Legislature for the
purpose of being le-constituted with the necessary corporate powers.

DoiuoN, C. J. : —

This ap])eal arises out of proceedings adopted by the .\ttorney-
(Jeneral of the Province of Quebec, under Article !)!)7 of the ("ude
of Civil Procedure, to test the ri^ht of the r< spoiident to act a-; an

(1) 7 App. Gas. 96, 108; ante vol. 1, 205, 272.

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1883 incorporated building society, and aa svich to acquire and sell real

, "'^ estate situated within tlio Province.

LORANGER

f. By an Act of the Parliament of Canada, passed in the 37th year

BL^Lnmf'^^^Nn °^ ^er Majesty's Reitjn, c. 103, William Rodden and others were

Invkstment incorporated undir the name of the Colonial Building and Invest-

" ment Association, for the jjurpose, as stated in the preamble of the

dj.B.. (juebec. ^^^^ n ^f buying, leasing, or selling landed property, buildings and
Dorion, C.J. appurtenances thereof," etc.

The company is not by its Act of incorporation restricted to curry
on business in the Province of Quebec, although it would seem from
several clauses of the Act and from the legal terms used in sections
4, 34, 35 and the reference in section 36, to the Code of Civil
Procedure of Lower Canada, that the p.nncipal, if not the sole object
of the company was to carry on its opei'ations in the Province of
Quebec, and it has been established in evidence, that since its
organisation, in 1874, the company has been carrying on business
exclusively in that Province, where it has purchased rail estate
to a very large amount.

Under this state of facts two questions are raised.

1st. Had the Parliament of Canada the right to incorporate a
building society to carry on business in the Province of Quebec
exclusively ?

2nd. Is the power conferred upon this company to acquire lands
in the Province of Quebec contrarj' to tlie laws of mortmain in force
in the Province ? a;id, ii so, Imd the Parliament of Canada any
authority to except the company respondent from thu operation of
thi)se laws?

Before the B. N. A. Act is passed, the organisation of build-
ing societies was considered as s ) intimately connected with the
different system of laws in force in each of the two Provinces of
Upper and Lower Canada, that although under the union which
then existed, all the laws affecting them were enacted by one and
the same legislative body, it was found necessarj to have on this
subject, a separate legislation for each Province. The dispositions
applicable to Lower Canada were contained in the Lower Canada
Consolidated Htatutes, c. 60, and those applicjvble to Upper
Canada, in the Consolidated Statutes of Upper Canada, c. 53.

Since the union of tlie Provinces under the B. N. A. Act, c.
69 of the Lower Canada Con8oli<lated Statutes has been twice
amended and partly repeated by the Legislature of the Province of
Quebec, first, in 1876, by 39 Vict. c. (51, and secondly, in 1878, by
41 Vict. c. 20.

PRIVY COUNCIL.

isr

kct, c
twice
nice of
h!7S, by

In 1878, the Parliament of Canada by 40 Vict. c. 50, also amended 1883

and partly repealed the same c. (59 of the Lower Canada Consoli- ^ ^

' •' ' . LouANr;i:i!

dated Statutes, and in 1870 both the Parliament of Canada and the v.

Lc^'islature of the Province of Quebec, the first, by 42 Vict. c. 48, Buildino'and

and tlie second, by 43 Vict. c. 32, made provisions for the voluntary Investment

... . Association.
liquidation of building societies in the Province of Quebec.

Chapter 69 of the Con. Stat, of Lower Canada has therefore been Q-B-. Quebec,
considered by the Parliament of Canada iis being a Dominion law, Dorion, C.J.
and been twice dealt with as such, while it has been tliree times
amended by the Legislature of Quebec as a Provincial law.

The Provincial Legislatures have the same exclusive right under
secf. 92 of the B. N. A. Act, to pass laws relating to the subjects
therein mentioned, as tlie Parliament of Canada has under sect. 91
to pass laws on subjects not expressly assigned to the former.

If seems therefore impossible that both legislative bodies should
liave had tlie right to amend and re])eal in whole or in part, the
provisions of c. 69 of the Consolidated Statutes of Lower Canada.

The (question was submitted to us iu the case of McClanaghmi v.
tlie ^'^ A}ut\i MntiiaJ BHildimj Sucietij, (1) and we there decided
on the authority of L'Unioii l<t. Jacriuvs v. Bel isle, (2) that c. GO of
the Con. Stat, of Lower Canada having a provincial object and
affecting civil lights, came within the exclusive jurisdiction of t!>e
Priivincial Legislature under sub-sects. 10, 11, 13 and 16 of sect. 92
of the B. N. A. Act, and that the Act 42 Vict. c. 48, passed by the
Pai'liainunt of Canada, to provide for tlie liquidation of building
soc'e"ies in the Province of Quebec, was ultra vires. We, at the
s'line time, mainlained the Act of the Quebec Legislature, 43 Vict,
c. 32, which had the sam^ object as the Do. o'on Act. We tliereby
held that the Provincial Legislature had exclusive control over the
Acts authorising tlin establishinent of building societies in the Pro-
vince of Quebec.

It is however argued that the c(unpany, respondent, is not incor-
porated f"V the purpose of doing business in the Province of Quebec
only, but in all the Provinces of the Dominion, and that as lume of
the Provinces could pass such an Act, the autJiority to do so vested
in the Dominion Parliament, the subject not coming witliin any «>f
the classes of subjects assigned exclusively to the Provincial Legis-
latures by S( ct. 92 of the Im[)erial Act.

(1) 24 L. C. J. 1G2 ; ante vol. 2, p. 237.

(2) L. K. (] r. C. 31 ; ante vol. 1, p. 03.

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LORANOEU
V.

Colonial

buildino and

Investment

Ahsociation.

Q.B., Quebec.

Dorion, O.J.

In the case of Regina v. Mohr (1), this Court hekl that a company
incorporated by an Act of the Parliament of Canada (43 Vict. c. 67),
to establish telephone lines in the several Provinces of the Dominion,
liad no right to establish an independent line of telephone wholly
witliin the Province of Quebec and not connecting this Province
with any other of the Provinces, or not being extended beyond the
limits of the Province, as sncii independent telejihone line did not
come within any of the exceptions contemplated in paragraphs a, h
and c of .-^ub- sect. 10 of sect. 92 of the B. N. A, Act. Our judg-
ment in that case was based on an express provision of the xVct
applying to lines of steamships, railways, tele,i,'raphs and other
similar undertakings. Building societies are not expressly men-
tioned in that sub-section, and their object is not of the same
character, as the Avorks and undertakings to which it I'efevs.
Altliough it is difficult to understand why a different rule should
prevail, yet it cannot l>e said that building societies come witliin
the express prcA'i.sion of sub-sect. 10, and that decision is not there-
fore inconsistent with the opinion expressed by the Judicial Com-
mittee of the Privy Council in the case of The Citizens' I)is. Co. v.
Parsons (2). In that case, their Lordships in their observations on
the judgment of Mr. Justice Taschereau of the Supreme Court, ex-
pressed themselves to the effect, that the power to incor2)oi'atc an
insurance company to c;irry on business in one of the Provinces of
the Dominion, lay with the Legislature of that Pr()vince ; while the
incorporation of companies to carry on business throughout the
whole Dominion or in more Provinces than one, was vested in the
Parliament of Canada, a< not coming within the classes of subjects
exclusively assigned to the Provincial Legislatures.

Although the question alluded to was not specially rai'-ed in the
case of The Citizens' Ins. Co. v. Pnrsoiis (2), yet the opinions expressed
were so directly to the -^loint, that we do not I'eel it would be com-
petent for us to consider the questicm as being now an ojten one.

We do not, however, consider tliat the opinion so expressed covers
the present ease. Here we have a company incorporated to carrj'
on its operations throiighnut the whole Dominion, which assumes to
do business in one Province only, that is, in the Province of Quebec.
The exclusive right of the Legislature of that Province to regulate
the establishment of building societies within its own limits would

(1) 7 Quebec Law Rep. 183 ; ante vol. 2, p. 257.
(2) 7 App. Cas. 9G ; ante v.il. 2, p. 265.

PRIVY COUNCIL,

141

be (lostroyed if the ±'arliament of Canaila could by granting general 1883

powers, authorise a conirmuy to act within o;ie of the Provinces , '~^

^ . LOKANiiKH

only. The inconvenience resulting from the exercise of such a v.

power is well exemplified in the present case. If the company, BuiloinI'^vm)
respondent, had been incorporated under the Acts in force in t!ie Investmknt

Province of Quebec, relating to building societies, it would only

have o'ltained the limited powers conferred upon such societies by Q-B. , Qu ebec,
c. ()'.) of the Consolidated Statutes of Lower Canada and its amend- Dorion, C.J.
meuts, but by going to the Parliament of Canada for a special Act of
incorjioration, it has obtained powers of a nmch more extended
character, and sncli as are not conferred on other building socle; i( s
in the Province of Quebec.

As the Dominion Parliament could not directly incorporate a
buildhigs iciety to do business exclusively in the Province of Quebec,
it would seem that a company incorpoiated to do business through-
ouf the whole Dominion cannot restrict its business to one Province
only, w thout infringing on the exclusive right of the Legislature of
such Province to giant the auth-rity necessary for that purpose.

We now come to the second question reUit'ug to the power granted
to tiio company, re-'pondenf, to acquire and hold land, to an unlimited
extent within tlio Province of Quebec.

In the case of The ChaiuUerc iTold-min'mij Company v . Desbarats (1)
it was held by the Judicial Committee of the Privy Council, confirm-
ing the jutLinents of both the Superior Court and of this Court, that
a c ifi)oration. wliether f reign or doinestii', is incapacitated Iroin
actpiiring as w;ell as from holding lands in L.)wer Canada, without
tlio [lennission of the Crown being first obtained. This restriction
ivl ites to property and civil riglits (Art. ;5()(j and 830 Civil Code of
L. ('.), and as such can only be removed by the Legislature of the
i'ldvince of Quebec. Tlie Parliament of Canada, although it may
have tlie power to iiicorp irate companies \o d ■ business throughout
the wliol iJoniinion, has no right to alter or rep al the general or
s|Hcial l.iws of the several Provinces aflfecting tlie tenure of lands or
til'' n_lit to accjuire aul hold lands therein.

This iiuestioii was formally decided in the case of T/ie Citizens'
III"!. Co. V Po'«o)i,s, already cit 'd, and apart fr"m the general rule
there laid down, vve lind in the oxhausive juilginent of thrii Lord-
slii|is t'hi following passage, p. 117 : — " l!ut it; by no means follows
(unless indeed the view of the learned Ju(l.;e is right as to the scope
of the word , ' the reg ilation of trade an i C"mm' rce ') that because

~ (1) L. U. 5 P. C. 277.

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PRIVY COUNCIL.

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1883 tlie Dominion Parliament has alone the right to create a corporation

, """"' 1 1 carry on business throuu'hout the Dominion that it alone has the

LOUANGER " . . , » , ^r ■ CI

V. riglit to regulate its contracts in each of the rrovinces. ouppose

Colonial ^j^ Dominion Parliament were to incorporate a company, with power,
Building and i i j' ^ '

Invkstmknt among other things, to purchase and hold lands throughout Canada

* " in mortmain, it could scarcely be contended if such a company were

il.B., Cjuebec. to carry on business in a Province where a law against holding land
Dorion, C.J. in mortmain prevailed (each Province having exclusive legislative
power, ' over propeuty and civil rights in the Province ') that it could
hold land in tliat Provirce in contravention of the provincial legis-
lation ; and, if a company were incorporated for the sole purpose of
purchasing and holding land in the Dominion, it might happen that
it could do no business in any part of it, by reason of all the Prov-
inces having passed Mortmain Acts, though the corporation would
still exist and preserve its status as a corporate body."

The supposed case commented upon by their Lordships is exactly
the one we have to deal with. The Civil Code in the articles already
cited prohihits the acquisition > .f immoveable jjroperty by corporations
without the previous permissif)n of the Crown, and c. 69, Con. Stat
of Lower Canada (sects. 13 and 23), has specially guarded against the
iiccumulation of landed estate, in the hnndsof building societies, by
providing thut they could only hold real estate as security for loans
made by such societies, or for moneys due for the payment of stock ;
the only power to hold real estate absolutely being limited to an
amount of $6,000. Yet the Dominion Parliament in contravention
to both the general laws of the Province and the special laws enacted
in reference to building societies, has incorporated- the company
respondent for the very purpose, as stated in the preamble of the
Act, of buying, leasing, and selling landed property, buildings and
appurtennces (37 "Vict. c. 103, preamble iind sect. 4), and it is in
evidence that acting under this Act, the company respondent has
already Required large tracts of land in the City of Montreal, and its
immediate vicinity. Whatever, therefore, may bd the ultimate
decision as to the right of a company to do business in one Province
only wl en that company is incorporated by the Parliament of
C mada to do business throughout the whole Dominion, it is clear
from the opinion expressed by the Judicial Committee of the Privy
Council, that the c -nipany respondent h^id no power to deal in the
purchase, lease and sale of real estate, etc., in the Province of
Quebec.

We therefore consider the judgment of the Superior Court to have

PRIVY COUNCIL.

143

been erroneous, and acting upon the sugpfsstion contained in the 1888
above extract from the judgment in the Citizens' Insurance Company ""^

V. Parsons, without deciding that the whole Act incorporating the v.

company resjiondent is ultra vires, we hold that the company has no buildim'^xni)
right to exercise in the Province of Quebec, the powers conferred by Investmknt

its Act of incoi'poration to buy, lease and sell lauds, etc. , in the L

Province of Quebrc, and it is by our judgment forbidden to do so. Q-B. , Qu ebec.

Cross and Baby, JJ., concurred with Dorion, C.J , — '-

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PRIVY COUNCIL.

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J. c* Ahohibald G. Hodge Appellant ;

1888 AND

The Quf:EN Respondent.

Nov. 14,15, 16;
Dec. 15.

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On appeal from the CouH of Appeal of the Province of Ontario.

(Reported £ App. Gas. 117.)

B. N. A. Act, ss. 91, 92— Liquor License Act of 1877, R. S. 0.,

c. 181 — Powers of Local Legislature — Delegation —

Imprisonment I'.'Hh Hard Labour.

Subjects which in one aspect and for one purpose fall within sect.
92 of the B. N. A. Act, 1867, may in another aspect and for
another purpotie fall wiihin sect. 91.

Russell V. The Queen (7 App. Cas. 829 ; aute vol. 2, p. 12) explained
and approved.

Held, th, t '' The Liquor License Act of 1877," c. 181, Revised
Statutes of Ontario, which, in respect of sects. 4 and 5, makes
regulations in the naiuie of police or municipal regulati ns of a
merely local cliaiacter for the good government of taverns, etc.,
does not, in respect of those sections interfere with the genei'al
regulation of trade or commerce, but comes within Nos. 8, 15
and 16 ot sect. 92 of the Act of 1867, and is within the powers
of the Provincial Legislature.

Held, further, that the Provincial Legislature had i)0wer by the
said Act of 1867 to entrust to a Board of Commissioners author-
ity to enact regulations of the above characer, and thereby to
create offences and annex penalties thereto.

" Imprisonment " in No. 15 of sect. 92 of the Act of 1867 means
imprisonment with or without liard labour.

Api)eal from a decision of the Coiu't of Appeal (June -SO,
1882), (1) allowing the respondent's appeal from a deci-
sion of the Court of Queen's Bench (June 25, 1881), (2) by

* Present: — Loiin FrrzGiiUALi), Sin Baunks Peacock, Sir Robeht P. Col-
lieu, Sib RioHAKi) Coi;c;h, and Siu Authuk Hobhouse.
(1)7 App. Rep. 246 ; post, p. 166. (2) 46 U. C. Q. B. 141 ; post, p. 184.

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PRIVY COUNCIL.

145

which last mentioned decision it was ordered that a cer- 1883
tain examination made on the 19th da}'- of May, 1881, by hougk
and before the Police Magistrate of the City of Toronto, t^^, (j^^^^^
on the information and complaint of one Thomas Dexter, statement
whereby the appellant was convicted for that he, the —
appellant, did on the 7th day of May, 1881. unlawfully
permit and suffer a billiard table to be used and a game
of billiards to be played thereon, in his tavern, in the con-
viction named and described as the St. James' Hotel, situ-
[118] ate within the City of Toronto, during the time
prohibited by the "Li([Uor License Act," (Revised Statutes
of Ontario, c. 181) for the sale of liquor therein, against
tlie form of the resolution of the License Commissioners for
the City of Toronto for regulating taverns and shops,
passed on the 25th of April, 1881, should be and the same
was quashed.

The appellant at the time of the alleged offence was
tlie holder of a liquor license, issued on the 25th of April,
1881, by the board of License Commissioners for the City
of Toronto, under the " Liquor License Act " of the Pro-
vince of Ontario, in respect of the St. James' Hotel, which
license remained in force until the 1st of May, 1882.

The appellant was also then the holder of a license dated
the 24th of February, 1881, issued under the authority of
tlie " Municipal Act " (Revised Statutes of Ontario, c. 174,
s. 4G1), by the corporation of the City of Toronto, authoriz-
ing him to carry on the business or calling of a keeper of
a billiard saloon with one table for hire, which last-men-
tioned license remained in force until the 31st )f Decem-
lier, 1881.

The facts are stated in the judgment of their Lord-
ships (1).

r '

M,.

.1*

.^?;'

r i

(1) [The shorthand writers' notes
of the proceedings before the Judi-
cial Committee in this case are
10

printed in the Dominion Sessional
Papers of 1884, vol. 17, Sessional
Paper 30.]

I5J?B
n

:; I

II <l

I .

I I

i i.

1883

Hodge

I'.

Thk (^ueen.

Argument.

146

PRIVY COUNCIL.

Kerr, Q.C. (of th j Cdnadian Bar), and Jenne, for
appellant : —

the

First, the Ontario Assembly is not competent to legislate
in regard to licenses for the sale of liquor, and the regula-
tion of licensed houses. The B. N, A. Act, sect. 92, sub-
sect. 9, empowers the Pi'ovinces to legislate in regard to
shop and tavern licenses, but only for the purpose of
raising a revenue. Sect. 91, sub-sect. 2, gives the regula-
tion of trade and commerce to the ])ominion. In the case
of Russell V. The Queen (1) it was held that the power to
prohibit and regulate the traffic belonged to the Dominion.
It is very desirable that legislation on this subject should
be uniform ; and this cannot be secured if each Province
can pass a licensing law of its own. Second, even if the
Ontario Legislature could deal with the subject it could
not delegate its powers to License Commissioners. In llie
Queen v. Burah (2) it is laid down that a Local Legisla-
[1 19] ture cannot create a new legislative power not created
or authorized by the Imperial Parliament. In this case
the Local Leoishiture has assioned to three officials the
power to define offences and impose penalties. But even
if the statutory powers of the Commissionem are intra
vires of the Legislature, this resolution is not a good exer-
cise of their powers. They assume to regulate billiard
tables which ought to be regulated by the City Council in
accordance with the Rev. Stat. Ont. c. 174. The resolu-
tion is also bad because it places keepers of billiard tables
who sell liquor at a disadvantage as compared with those
who do not. A by-law discrindnating in favour of one
class of traders and against another is bad : see Jonas v.
Gilbert (3). See also Cooley on Constitutional Limita-
tions, pp. 201, 503.

(1) 7 App. Cas. 829 ; ante, vol. 2, p. 12. (2) 3 App. Cas. 889, 905.
(3) 5 Can. S. C. R. 356.

PRIVY COUNCIL.

147

1883

Hodge

(Loud FitzGeuald : — We will take the passages from
Cooley as part of your argument but not as authority.)

Lastly, there is no power in the Legislature or in the t„j. queen.
Commissioners to impose the punishment of hard labour, akotmest.
There is a wide difference between simple punishment
and hard labour : Hawkins' Pleas of the Crown, p. 184;
Easton's Case (1). The B. N. A. Act, sect. 92, sub -sect.
15, prescribes " tine, penalty or imprisonment," as the
punishments to be imposed for breach of provincial
laws. The decision in Fraivleys Case (2) was based
on the mistaken assumption that the Provinces surren-
dered their right into the hands of Parliament at confed-
eration. There was a re-ariangement and transfer of
some provincial powers to the Dominion, among others
of the power to deal with criminal huv, along with
which the power to impose hard labour naturally goes.
The penalty imposed by the resolution is a fixed penalty
and therefore unreasonable : Saunders v. South- Eaai em
Railway Company (3).

Davey, Q.C., and JEviiliiis Irving, Q.C. (of the Cana-
dian Bar), {Raleigh with them), for the Crown : —

This question must be decided by the rules laid down in
Citizens' Ins^^rance Company of Canada v. Parsons (4).
[120] Does the Liquor License Act belong to any of the
classes of subjects assigned to the Provinces ? The liquor
trade, like all other trades, is subject to local regulation
for purposes of police. The Commissionei's are a "muni-
cipal institution " within sub-sect. 8 of sect. 92 of the B.
N. A. Act. The regulation of licensed houses is primarily
a matter of police ; the interference with " trade and
commerce " is only incidental. Russell v. The Queen (5)

■11

■as

'4'

f.'

(1) 12 A. & E. 645.

(2) 46 U. C. Q. B. 163 ; 7 App. Rep.

246 ; ante, vol. 2, p. 576.

(3) 5 Q. B. D. 462.

(4) 7 App. Cas. 96 ; ante, vol. 1,
p. 265.

(5) 7 App. Cas. 829 ; ante, vol. 2,
p. 12.

148

TRIVY COUNCIL.

1883

HODOK

r.
The (^uekn.

Akgumknt.

Illljih

establishes the right of the Dominion to legislate on the
liquor traffic as a nK tter atiecting the jieaco and good gov-
ernment of Canada. This is not inconsistent with the
riirhtof the Provinces to lo<;isliite on the same subioct for
purposes of police. This is recognised in sect. 112 of the
Canada Temperance Act itself. Of course if the Province
restricts any trade by requiring a license, that must be
done bona tide for the purpose of raising a revenue. The
right to regulate licensed houses is generally recognised
in Canada, as appears from the cases collected in Cart-
wright's Cases on the B. N. A. Act : see City of Fred-
ericton v. The Queen (1); In re Slavin and the Corporation
of Ovillia (2); Jieg. v. Justices of Kincf's County (3);
Keefe v. Maclennan (4j; Blouin v. Corporation of Quebec
(5) ; Corporation of Three Rivers v. Suite (6).

As to the delegation to Commissioners, the maxim
delegatus non potest delegare does not apply to a Local
Legislature : The Queen v. Burah (7). There is here no
delegation of legislative authority — only of the powers to
make by-laws. The resolution is within the powers of
the Commissioners. They do not attempt to regulate
billiard tables ; it is as liquor licensee, not as billiard
licensee, that the appellant is required to close his billiard
saloon. As to the penalties which may be imposed, sect.
59 of the Liquor License Act prescribes fine and imprison-
ment; sect. 70 adds the powers for enforcing by-laws
given to municipal councils by sects. 400-407, and sect.
4.54 of the Municipal Act, Rev. Stat. Out. c. 174, and these
powers include the imposition of hard labour. By Con.
Stat. Can. 1859, c. 99, hard labour could be added

(1) 3 Can. S. C. R. 505 ; ante, vol. (4) 2 Russell & Chesley, 5 ; ante,
2, p. 27. vol. 2, p. 400.

(2) 36 U. C. Q. B. 159 : ante, vol. (5) 7 Quebec L. R. 18 ; ante, vol.
1, p. 688. 2, p. 368.

(3) 2 Pugsley, 535 ; ante, vol. 2, p. (6) 5 Legal News, 330 ; ante, vol.
499. 2, p. 280.

(7) 3 App. Cas. 889, 904.

PRIVY COUNCIL.

149

[121] to any sentence of iniprisonnicnt. Tliat Act 1883
is still in foice as to ottencos against provincial laws; Kodoe
as to offences af,'ainst the criminal law (which is assij^ned t^^^ qikek
ti» the Dominion) it has been re-enacted. The term " im- AuouMkNT.
prisonmcnt " is very general, and includes imprisoment
with hard labour : see Stephen, Digest of Criminal Law,
art. 4, which gives the eft'ect of 28 & 20 Vict. c. 126.
In construing a conviction, the term " inii)risoninent "
would not be assumed as against the prisoner to mean
imprisonment with hard lal)our. But in construing an
instrument of government such ua the B. N. A. Act, a
wide construction should be given to the powers of the
Local Legislature: see Vattel.Book 2,c.l7, ss. 2(So, 280, cited
in the judgment appealed from (1). The resolution is not
open to objection as prescribing a fixed penalty, for by
sect. 402 of the Municipal Aut (incorporated in the Liquor
License Act) the justice may connnit " for the term or
8orae part thereof specitied in the by-law." They also
referred to liefj. v. O'xiourke (2) and Archbold's Criminal,
Pleading, 19tli ed., p. 56.

Kerr, Q.C., in reply : —

The Provinces have a strictly limited jurisdiction, and
though they may amend their constitutions, they may
not take more power than Parliament gave them. "Muni-
cipal Institutions " includes only what was generally
included under that head at confederation. In some
of the Pi'ovinces the Legislature had never undertaken to
restrict the liquor trade. He referred to Dohie v. Tennixn'-
alities Board (3).

.mm ■

fit!

The judgment of their Lordships was delivered by

Sir Barnes Peacock : —
The appellant, Archibald Hodge, the proprietor of a

1) See note (1), post, p. 169. (2) 1 Ont. Rep. 464 ; ante, vol. 2, p. 044.

(3) 7 App. Caa. 136 ; ante, vol. 1, p. 351.

411

ri ' '1'

150

PllIVY COUNCIL.

|l.

1883 tavern known as the St. James' Hotel, in the City of
Hodge Toronto, and who, on the 7th May, 1881, was the hohh'r
THKriuEKN. "^i" ^ license for the retail of spirituous liquors in liis
JuiiGMENT. tavern, and also licensed to keep a billiard saloon, was
summoned belbre the Police Magistrate of Toronto, for a
[122] breach of the resolutions of the License Commis-
sioners of Toronto, and was convicted on evidence suf-
ficient to sustain the conviction if tlie magistrate had
authority in law to make it.

The conviction is as follows, viz. : —

" Conviction.

"Canada: Province of Ontario, County of York, City
of Toronto, to wit : —

"Be it remembered, that on the li)th day of May, in
the year of our Lord one thousand eight hundred and
eighty-one, at the city of Toronto, in the County of York,
Archibald G. Hodge, of the said city, is convicted ))efore
me, George Taylor Denison, Escpiire, Police Magistrate in
and fcr the said city of Toronto, for that he, the said
Avchil)al(l G. Ifodge, being a person whu, after the i>assing
of the resolution hereinaPter mentioned, received, and
who, at the time of the committing of the offence herein-
after mentionec, held a license under the Liquor License
Act, for and in re.'-pect of the tavern known as tlie St.
James' Hotel, sit.uate on Yoi'k Street, within the city of
Toronto, on the 7th day of jVIay in the year aforesaid, at
the said city of Toronto, did unlawfully permit, allow and
sutler a, billiard table to be used, and a game of billiards
to be played thereon in the saitl tavern, during the time
prohibited by the Liquor License Act for the sale of
liquor therein, to wit. after the hour of seven o'clock at
night on tlie said seventh day of May, Ijeing Saturday,
aa'ainst t' o form of the resolution of the ^ icense Com-
missioners for the city of Tori'^to for regulating taverns

rmvY COUNCIL.

151

1883

Hodcp:

and shops, passed on the twenty-fifth day of April, in the
year aforesaid, in such case made and provided.

" Thomas Dexter, of said city, License Inspector of the the Queen.
city of Toronto, being the conipUiinant. Judgment.

"And I adjudge the said Archibald G. Hodge, for his
said offence, to forfeit and pay the smn of twenty dollars,
to be paid and applied according to law ; and also to pay
to the said Thomas Dexter the sum of two dollM's and

eighty-five cents for his costs in this behalf ; and if the
said several sums be not paid forthwith, then I order that
the same be levied by distress and sale of goods and
chattels of the said Archibald G. Hodge ; and in default of
sutficient distress, T adjudge the said Archibald G. Hodge
to 1)6 imprisoned in the common gaol of the said [12 1]
city of Toronto and County of York, at Toronto, in the
county of York, and there be kept at hard labour for the
space of fifteen days, unless the said .sums, and tlie costs
and charges of conveying the said Archibald G. Hodge
to the said gaol, shall be sooner paid."

On the 27th May, 1881, a rule nisi was obtained to
remove that conviction into the Court of Queen's Bench
for Ontario, in order that it should be (|uash:'d as illegal,
on the grounds, 1st, that the said resolution of the said
License Commissioners is illegal and unauthorized; 2nd,
that the said License Commissioners hail no authority to
pa'^s the resolution prohil)iting the game of billiards as in
the said resolution, nor had they power to authorize the
imposition <jf a fine, or, in default of payment thereof,
iiuprisonment for a violation of the said resolution ; -h'd, •
the Liijuor License xVct, und<;r which the said Consniis-
sioners have assumed to pass the said resolution, is
beyond the authority of the Legi dature of Ontario, and
does not authorize the said resolution.

It will be observed that the question whether the
Local Letjislature could confer authoritv on the License

■\..

it;;

,'3J

152

PRIVY COUNCIL.

1883

HODGF

The (^uken.
JunujiENT.

Ill' :

l-'l

Commissioners to make the resolution in question is not
directly raised by the rule nisi. On the 27th June, 1881,
that rule was made absolute, and an order pronounced by
tlio Court of Queen's Bench to quash the conviction. The
jurlgment of the Court, which seems to have been unani-
mous, was delivered by Ilagarty, C. J., with elaborate
reasons, but finally it will be found that the decision of
the Court rests on one ground alone, and does not profess
to decide the question which on this appeal was princi-
pally discussed before th^^ir Lordships. The Chief Jus-
tice, in the course of his judgment, .says : —

" It was stated to us that the parties desired to present
directly to the Court the very importiuit question whether
the Local Legislature, assuming that it had the power
themselves to make these regulations and create these
offences, and annex penalties for their infra,c<"ion, could
[124] delegate such powers to a board of Commissioners
or any other authority outside their own legislative body."

And, again, he adds : —

" We are thus brought in face of a very serious ques-
tion, viz., the power of the Ontario Legislature to vest in
the License Board the power of creating new oifences and
annexing penalties for their commission."

And concludes his judgment thus, referring to the Reso-
lutions : —

" The Legislature has not enacted anv of these, but has
merely authorized each Board in its discretion to make
them.

" It seems very difReult, in our judgment, to hold that
the confederation Act gives any such power of delegating
autlK)rity, first of creating a quasi offence, and then of
punishing it by fine or imprisonment.

" We tiiink it is a power that must bo exercised by the
LegislatiH'e alone.

" In all these questions of ultra vires the powers of our

PRIVY '"OUNCIL.

153

1883

|)ut has
make

1(1 that
gating
hen of

HoncK

The (.»ueen.

Legislature, we consider it our wisest 'ourse not to widen
the discussion by considerations not necessarily involved
in the decision of the point in controversy.

" We, therefore, enter into no general consideration of juiigjmcnt
the powers of the Legislature to legislate on this subject;
but assuming their right so to do, \vu feel constrained to
hold that they cannot devolve or delegate these powers
to the discretion of a local Board of Commissi"ners.

" We think the defendant has the right to say that he
has not offended against any 'law of the Province,' and tliat
the convictions cannot be supported."

The cp.se was taken from the Queen's Bench on appeal
to the Court of Appeal for Ontario, under the Ontario
Act, 44 Vict., c. 27, and on the 30th June, 1882, that
C (t( reversed the decision of the Queen's Bench, and
iitl^riied the conviction.

Two questions only appear to have been discussed in
the Court of Appeal, 1st, that the Legislature of Ontario
had not authority to enact such I'egulations as were [12o]
enacted by the Board of Commissioners, and to create
offences and annex penalties for their infraction ; and, 2nd,
thiit if the Legislature had such authority, it could not
('."legate it to the Board of Commissioners, or an}'- other
authority outside their own legislative body.

This second ground was that on which the judgment of
the Court of Queen's Bench rested.

The judgments delivered in the Court of Appeal by
Spragge, C, J., and Burton, J. A., ai-e able and elaborate,
and were adopted by Patterson and Morrison, JJ., and
their Lordships have derived considerable aid frof>i a
careful consideration of the reasons given in both Courts.

The appelhint now .seeks to rever.se the decision of the
Court of Appeal, both on the two grounds on which the
case wa.s discu,s.sed in that Court and on others technical
but substantial, and which were urired before this Boartl

I -/I

•n

.iji i|i

< «1

154

PRIVY COUNCIL.

1883

HODGK

The Queen.
Judgment.

'; !■

I i

with zsal and ability. Tlie main questions arise on an
Act of the Lefrisliiture of Ontario, and on what liave been
called the resolutions of the License Commissioners.

The Act in question is chapter 181 of tlie Revised
Statutes of Ontario, 1877, and is cited as "The Liquor
Lic(!nse Act."

Sect. ?> of this Act provides for the appointment of a
Board of License Commissioners for each city, county,
utnon of counties, or electoral district as the Lieutenant-
Governor may think fit, and sects. 4 and 5 are as fol-
lows : —

" Sect. 4. The License Commissioners may, at any time
before the first day of May in each year, pass a resolution,
or resolutions, for rofjulatino- and detcrminirfj the mat-
ters following, that is to say : —

"(1.) For defininuj the Conditions and (lualitications re-
(luisite to obtain tavern licenses for the retail,
within the municipality, of spirituous, fermented,
or other manufactured liquors, and also sliop
licenses for the .sale by retail, within the muni-
cipality, ol' such liquors in shops or places other
than taverns, inns, alehouses, beerhouses, or places
of piiblic entertainment.

•'(2.) For Ihuiting the number of tavern and sho])
licenses respectively, and for defining the respec-
tive times and localities within which, and [1-G]
the persons to whom, such limited number may
be issued within the year, from the first day of
May of one year till the thirtieth day of April*
inclusive, of tin; next year.

"(3.) For declaring tliat in cities a number not excectl-
ing ten persons, and in towns a nundier not ex-
ceeding four persons, (pialilied to have a tavern
license, nia} be exempted from the necessity of

PRIVY COUNCIL.

156

having all the tavern accommodation required 1883
by law, HoncE

" (4.) For regulating the taverns and shops to be licensed, the qVekm.

"(5.) Tor fixing and defining the duties, powers, and juJ^e^r.
privileges of the Inspector of Licenses of their
district.

" Sect. 5. In and by any such Resolution of a Board of
License Commissioners, the said Board may impose pen-
alties for the infraction thereof."

Sect. 43 prohibits the sale of intoxicating liquors from
or after the hour of seven of the clock on Saturday till
six of the clock on Monday morning thcreaft jr.

Sect. 51 imposes on any person who sells spirituous
liquors without the license by law required, or otherwise
violates any other provision of the Act, in respect of
wl)ich violation no other punishment is prescribed, for
the first offence a penalty of not less than twenty dollars
and not more than fifty dollars, besides costs, and for the
second offence imprisonment with hnrd labour for fi period
not exceeding three calendar months.

Sect. 52. For punishment of offences against sect. 4-3
(rc(iuiring taverns, etc., to be closed from seven o'clock on
Saturday night until six o'clock on Monday morning), a
]»enalty for tlie first offence of not less than twenty dol-
lars with costs, or fifteen days imprisonment with hard
labour, and with increasing penalties for second, third
and fourth offences ; and sect. 70 provides that where the
resolution of the License Connnissioners imposes a pen-
alty it may bo recovered and enforced before a magistrate
in the nutuner and to the extent that by-laws of muni-
cipal corporations may be enforced under the authority of
the Municipal Act.

License Commissioners were duly appointed under this
statute, who, ou the 25th April, 1881, in pursuance [127]
of its provisions, made the resolution or reguhitioR

■'Us

I'!

i\W ^ii

156

PRIVY COUNCIL.

1883

HODflE

r.
The Queen.

now questioned in relation to licensed taverns or shops in
the city of Toronto, vvhicli contains (inter alia) the fol-
lowing paragraphs, viz. : —

Judgment. " Nor shall any such licensed per.son, directly or indi-
rectly as aforesaid, permit, allow, or suffer any bowling
alley, l)illiard or Lngatelle table to be used, or any games
or amusements of the like description to be piayed in such
tavern or shop, or in or upon any premises connected
therewith, during the time prohibited by the Liquor
License Act, or by this resolution, for the sale of liquor
therein.

"Any per.son or persons guilty of any infraction of any
of the provisions of this resolution shall, upon ccmviction
thereof before the Police Magistrateof the city of Toronto,
forfeit and pay a penalty of twenty dollars and costs ;
and in default of ))ayiuent thereof forthwith, the said
Police Magistrate shall issue his warrant to levy the .said
penalty by distress and sale of the goods and chattels of
the offender ; and in default of sufficient distress in that
behalf, the said Police Magistrate shall by warrant com-
mit the offender to the common gaol of the city of Toronto,
with or without hard labour, for the period of fifteen
days, unless the said penalty and costs, and all co.=ts of
distress and commitment be sooner paid."

The appellant was the holder of a retail license for his
tavern, and had signed an undertaking as follows : —

" We, the undersigned holders of licenses i'or taverns
and shops in the city of Toronto, re; pectively acknowledge
that we have severally and respectively received a copy
of the resolution of the License Commissioners of the city
of Toronto to regulate taverns and .shops, passed on the
25th day of April last, hereunto annexed, upon the sev-
eral dates set opposite to our respective signatures here-
under written, and we severally and respectively promise,

PRIVY COUNCIL.

157

iiops in
the fol-

)!• indi-
)Owling

games

in such

nnected

Liquor
l' liquor

n of any
iiviction
roronto,
I costs ;
the said
the said
.ttels of
in that
,nt coui-
)vonto,
fifteen
oHts of

for his

taverns
)wledge

a copy
~,lie city

on the
he sev-
U here-
b-omi.se,

undertake, and agree to ohserve and perform the condi-
tions and provisions of such resolution.

" 2nd May, Tavern. A. C. Hodge, (l.s.)"

He was ah ■> tlie liolder of a billiard license for the city
of Toronto to keep a billiard saloon with one table [128]
for the 3'ear 1881, and, under it, had a billiard table in his
tavern.

He did permit this billiard table to be used as such
within the period prohihiled by the resolution of the
License Commi ^ -ioners, and it was for that infraction of
their rules he was prosecuted and convicted.

The preceding statement of the facts is sufficient to
oiiable their Lordships to determine the questions raised
on the appeal.

Mr. Kerr, Q.C., and Mr Jeune, in their full and very
able argument for the ap;v llaut, informed their Lordships
tliat the first and principal question in the cause was
whether " The Liquor License Act of 1877," in its 4th
aud 5th sections, was ultra vires of the Ontario Legisla-
ture, and properly said that it was a matter of in.portance
as between the Dominion Parliament and the Legislature
of the Province.

Their Lordships do not tliink it necessary in the present
case to lay down any general rule or rules for the con-
struction of the British North America Act Thoy are
impressed with the justice of an observation l)y Hagarty,
C. J., " that in all these question^* of ultra vires it is the
wisest course not to wideii tlie discussion by considera-
tions not necessarily involved ir.. the decision of the point
in controversy." They do not forget that in a previous
decision on tliis same statute (Citizens Instirance Com-
pany uf Canada v. Parsoi).s) (1) their Lordships recom-
mended that, " in performing the difficult duty of deter-

(1) 7 App. Cas. 96; ante, vol. 1, p. 265.

1883
HoDc; K

The Qukkn.

JUDGMFM.

^l^.

m i

>fl

158

PRIVy COUNCIL.

1883

Ho DOE

Thk Queen.

Jl.'l)GMK.\T.

(il

mining sucli questions, it will be a wise course for those on
whom it is thrown to decide each case which arises as best
they can, without entering more largely upon the inter-
j)retation o£ the statute than is necessary for the decision
of the particular question in hand."

The appellants contended that the Legislature of On-
tario had no power to pass any Act to regulate the liquor
traffic ; that the whole power to pass such an Act was
conferred on the Dominion Parliament, and consequently
taken from the Provincial Legislature, by sect. 91 of the
British Nortli America Act, 1867 ; and that it did not
come within any of the classes of subjects assigned ex-
clusively to tlie Provincial Legislatures by sect. 92. The
class in sect. 91 which the Liquor License Act, 1877, was
[129] said to infringe was No. 2, "The Ilegulatiou of Trade
and Commerce," and it was urged that the decision of this
Board in Russell v. The Queen (1) was conclusive that the
whole subject of the liquor tiaffic was given to the
JJominion Parliament, and consequently taken away fi-om
the Provincial Legislature. It appears to their Lordships,
however, that the decision of this tribunal in that case has
not the effect supposed, and that, when properly consider-
ed, it should be taken rather as an authority in support
of the judgment of th« Court of Appeal.

The sole question there was, whether it was competent
to the Dominion Parliament, under its general powers
to make laws for the peace, order, and good government
of the Dominion, to pass the Canada Temperance Act,
1878, which was intended to be applicable to the several
provinces of the Dominion, or to such parts of the pro-
vinces as should locally adopt it. It was not doubted
tliat the Dominion Parliament had such authority under
sect. 91, unless the subject fell within some one or more

(1) 7 App. Caa. 829 ; ante, vol. 2, p. 12.

PIUVY COUNCIL.

159

1883

HoixiK

of the clasLOs of subjects, which by sect. 92 were assigned
exclusively to the Legislatures of the provinces.

It was in that case contended tiiat the s'lbject of the theQuken.
Temperance Act properly belonged to No. l:,' of sect. 92, jui^ient.
" Property and Civil Rights in the Province," which it
was said belonged exclusively to the Provincial Legisla-
ture, audit was on what setMus to be a misapplicaticjn of
some of the reasons of this board in observing on that
contention that the appellant's counsel principally relied.
These observations should be interpreted according to the
subject matter to which they were intended to apply.

Their Lordships, in that case, after comparing the Tem-
perance Act with laws relating to the sale of poisons,
observe that, —

" Laws of this nature designed for the promotion of
])ublic order, safety, or morals, and which subject those
who contravene them to criuunal procedure and punish-
ment, belong to the subject of public wrongs rather than
to that of civil rights. They are of a nature which fall
within the general authority of Parliament to make laws
for the order and good government of Canada."

[130] And again : — ■

" What Parliament is dealing with in legislation of
this kind is not a matter in relation to property and its
rights, but one relating to public order and safety. That
is the primary matter dealt with, and though incidentally
the free use of things in which men may have property is
interfered with, that incidental interference does not alter
the character of the law."

And their Lordshi|)s' reasons on that part of the case
are thus concluded : —

" The true nature and character of the legislation in the
particular instance under discussion must always be de-
termined, in order to ascertain the class of subject to
which it really belongs. In the present case it appears to

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160

PRIVY COUNCIL.

1883

HODGK

V.
ThK l^UEKN.

JuiXiMENT.

, I'

their Lordships for the reasons ah'cacly given, that the
matter of the Act in question does not properly belong to
the class of subjects ' Property and Civil Rights' within
the meaning of sub-sect. 13."

It appears to their Lordships that liussell v. The Queen,
(1) when properly understood, is not an authority in sup-
port of the appellant's contention, and their Lordsliips do
not intend to vary or dejjart from the reasons expressed for
their judgment in that case. The principle which that
case and the case of the Citizens' Instivdiice Company (2)
illustrate is, that subjects which in one aspect and for
one purpose fall within sect. 92, may in another aspect
and for another pui-pose fall within sect. 91.

Their Lordships proceed now to consider the subject
matter and legislative character of sects. 4 and 5 of " Tbe
Liquor License Act" of 1^77, cap. 181, Revised Statutes
of Ontario. That Act is so far confined in its operation to
municipalities in the Province of Ontario, and is entirely
local in its character and operation. It authorizes the
appointment of License Commissioners to act in each
municipality, and empowers them to pass under the name
of resolutions, what we know as by-laws, or rules to de-
fine the conditions and qualifications requisite for obtain-
ing tavern or shop licenses for sale by retail of spirituous
liquors within the municipality ; for limiting the number
[131] of licenses ; for declaring that a limited number
of persons qualihed to have tavern licenses may be
exempted from having all the tavern accommodation re-
quired by law, and for regulating licensed taver-ns and
shops, for defining the duties and powers of license in-
spectors, and to impose penalties for infraction of their
resolutions. These seem to be all matters of a merely
local nature in the province, and to be similar to, though

(1) 7 App. Cas. 829 ; ante, vol. 2, p. 12.

(2) 7 App. Cas. 96 ; ante, vol. 2, p. 265.

PRIVV CMUNX'IL.

161

abject
" The
atutes
ion to
tirely
■s the
each
name
to de-
jtain-
tuous
mhei"
inber
y be
n rc-
and
e in-
their
erely
lough

not identical in all respects with, the powers then belong- iwa
ing to municipal institutions under the previously exist- Hodok
ing laws passed by the Local Parliaments. THE<iiEEN

Their Lorships consider that the powers intended to bo jvpu^em-.
conferred by the Act in question, when properly under-
stood, are to make regulations in the nature of police or
municipal regulations of a merely local character for the
good government of taverns, etc., licensed for the sale of
li([Uors by retail, and such as are calculated to preserve, in
tlie municipality, peace and public decency, and repress
drunkenness and disorderly and riotous conduct. As
such they cannot be said to interfere with the general
reu'ulation of trade ajid connnerce which belongs to the
l)(jminion Parliament, and do not conflict with the pro-
visions of the Canada Tempeiance Act, which does not
appear to have as yet been locally adopted.

The subjects of legislation in the Ontario Act of 1877,
sects. 4 and 5, seem to come within the lieads Nos. 8,
15, and 16 of sect. 92 of British North America Statute,
1867.

Their Lordships are, therefore, of opinion that, in rela-
tion to sects. 4 and 5 of the Act in question, the Legisla-
ture of Ontario acted within the powers conferred on it
by the Imperial Act of 1867, and that in this respect
there is no conflict with the powers of the Dominion Par-
liament.

Assuming that the Local Legislature had power to
legislate to the full extent of the resolutions passed by
the License Commissioners, and to have enforced the ob-
servance of their enactments by penalties and imprison-
ment with or without hard labour, it was further con-
tended that the Imperial Parliament had conferred no
authority on the Local Legislature to delegate those
powers to the License Conunissioners or any other pei'sons,
In other words, that the power conferred by the Imperial
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162

PRIVY COUNCIL.

Parliament on the Local Legislature should be esercised
[132] in full by that body, and b^ that body alone. The
maxim, delegatus non potest delegare, was relied on.

It appears to their Lordships, however, that the objec-
tion tlius raised by the appellants is founded on an entire
misconception of the true character and position of the
Provincial Legislatures. They are in no sense delegates
of or acting under any mandate from the Imperial Par-
liament. When the British North America Act enacted
that there should be a Lejrislature for Ontario, and that
its Legislative Assembly should have exclusive authority
to make laws for the province and for provincial purposes
in relation to the matters enumerated in sect. 92, it con-
ferred powers not in any sense to be exercised by delega-
tion from or as agents of the Imperial Parliament, but
authority as plenary and as ample within the limits pre-
scribed by sect. 92 as the Imperial Parliament in the
plenitude of its power possessed and could bestow.
Within these limits of subjects and area the Local Legis-
lature is supreme, and has the same authority as the
Imperial Parliament, or the Parliament of the Dominion,
would have had under like circumstances to confide to a
municipal institution or body of its own creation author-
ity to make by-laws or resolutions as to subjects specified
in the enactment, and with the object of carrying the
enactment into operation and effect.

It is obvious that such an authority is ancillary to
legislation, and without it an attempt to provide for
varying details and machinery to carry them out miglit
become oppressive, or absolutely fail. The very full and
very elaborate judgment of the Court of Appeal contains
abundance of precedents for this legislation entrusting a
limited discretionary authority to others, and has many
illustrations of its necessity and convenience. It was
argued at the bar that a Legislature conunitting import-

PRIVY COUNCIL.

163

1883

ant regulations to agents or delegates effaces itself. That

is not so. It retains its powers intact, and can, when- Hodgk

ever it pleases, destroy the agency it has created and set the Qukkn.

up another or take the matter directly into its own jd^^kni.

hands. How far it shall seek the aid of subordinate

af^encies, and how long it shall continue them, are matters

for each Legislature, and not for courts of law, to decide.

Their Lordsliips do not think it necessary to pursue
this subject further, save to add that, if by-laws or resolu-
[133] tions are warranted, power to enforce them seems
necessary and equally lawful. Their Lordships have
now disposed of the real questions in the cause.

Many other objections were raised on the part of the
appellant as to the mode in which the License Commis-
sioners exercised the authority conferred on them, some
of which do not appear to have been raised in the Court
below, and others were disposed of in the course of the
argument, their Lordships being clearly of opinion that
the resolutions were merely in the nature of municipal
or police regulations in relation to licensed houses, and
interfering with liberty of action to the extent only
that was necessary to prevent disorder and the abuses of
liquor licenses. But it was contended that the Provin-
cial Legislature had no power to impose imprisonment or
hard labour for breach of newly created rules or by-laws,
and could confer no authority to do so. The argument
was principally directed against hard labour. It is not
unworthy of observation that this point, as to the power
to impose liard labour, was not raised on the rule nisi
for the certiorari, nor is it to be found amongst the
reasons against the appeal to the Appellate Court of
Ontario (I).

(1) [The objection that a Provin-
cial Legislature has not {wwer to
enforce its laws by imposing hard

labour as a punishment was raised in
the case of Renina v. Frawley (7
App. liep. 240 ; ante, vol. 2, p, 676),

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1883
Hodge

Thk Quekn.
juixjment.

164

PRIVY COUNCIL,

It seems to have been either overlooked or advisedly
omitted.

If, as their Lordships have decided, the subjects of
legislation come within the powers of the Provincial
Legislature, then No. 15 of section 92 of the British North
America Act, which provides for " the imposition of pun-
ishment by fine, penalty, or imprisonment, for enforcing
any law of the Province made in relation to any matter
coming within any of the classes of subjects enumerated
in this section," is }ipj)licable to the case before us, and
is not in contlict with No. 27 of section 91 ; under these
very general terms, " the imposition of punishment by
imprisonment for enforcing any law," it seems to their
Lordships that there is imported an authority to add to
the confinement or restraint in prison that which is gen-
erally incident to it — " hard labour ;" in other words, that
" iuiprisonment " there means restraint by continement
in a pris n, with or without its usual accompaniment,
"hard laliour."

The Provincial Legislature having thus tlie authority
to impose imprisonment with or without hai'd labour,
[134] had also power to delegate similar authority to the
municipal body which it created, called the License Com-
missioners.

It is said, however, that the Legislature did not dele-
gate such powers to the License Commissioners, and that
therefore the resolution imposing hard labour is void for
excess. It seems to their Lordships that this objection is
not well founded.

In the first place, by sect. 5 of the Liquor License Act,
the Commissioners may impose penalties. Whether the

argued in the Court of A|)i)eiil witli
the ca^e of Reijina v. Hodf/r. The
Court of ApiK'al held that the Pro-
vincial Legislature could impooe hard

labour as a imnishnient. See Do-
minion Sessional Pai)er8 of 1884,
Sessional Paper 30, p. 48.]

PRIVY COUNCIL.

165

See Do-

of 1884,

word " penalty " is well adapted to include imprisonment 1^83
may be questioned, but in this Act it is so used, for sect. Hoiwe
62 imposes on offenders against the provisions of sect. 43 THKtirEEN.
a penalty of 20 dollars or 15 days' imprisonment, and for judgjTent.
a fourth ofFiaice a penalty of imprisonment with hard
labour only. " Penalty " here seems to be used in its
wider sense as equivalent to punishment. It is observa-
ble that in sect. 59, where recovery of penalties is dealt
with, the Act speaks of " penalties in money." But, sup-
posing that tlie " penalty " is to be confined to pecuniary
penalties, those penalties may, by sect. 70, be recovered
and enforced in the manner and to the extent, that by-
laws of municipal councils may be enforced unde»' the
authority of the Municipal Act. The word " n ;over "
is an apt word for pecuniary remedies, and the word
" enforce " for remedies against the person.

Turning to the Municipal Act, we find that, by st.'ct*
454, municipal councils may pass by-laws for inflicting
reasonable fines and penalties for the breach of any by-
laws, and for inflicting reasonable punishment by im-
prisonment, with or without hard labour, for the breach
of any by-laws in case the fine cannot be recovered. By
sects. 400 to 402 it is provided that fines and penalties
may be recovered and enforced by summary conviction
before a Justice of the Peace, and that, where the prose-
cution is for an offence against a municipal by-law, the
Justice may award the whole or such part of the penalty
or punishment imposed by the by-law as he thinks fit ;
and that, if there is no distress found out of which a
pecuniary penalty can be levied, the Justice may commit
the offender to prison for the term, or some part thereof,
specified in the by-law. If these by-laws are to be en-
[135] forced at all by fine or imprisonment, it is necessary
that they should specify some amount of fine and some
term of imprisonment.

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166

PRTVT COUNCIL.

Ail

1883

HODOK

I'.

Thk Quken.
jcdgment.

■

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1 : ;

The Liquor License Act then gives to the Commission-
ers either power to impose a penalty against the person
directly, or power to impose a money penalty, which,
when imposed, may be enforced according to sects. 454
and 400-2 of the Municipal Act. In either case, the
Municipal Act must be read to find the manner of en-
forcing the penalty, and the extent to which it may be
enforced. The most reasonable way of" construing statutes
so framed is to read into the later one the passages of the
former which are referred to. So reading these two
statutes, the Commissioners have the same power of en-
forcing the penalties they impose as the Councils have of
enforcing their by-laws, whether they can impose penal-
ties against the person directly, or only indirectly as the
means of enforcing money penalties. In either case, their
resolution must, in order to give the magistrate jurisdic-
tion, specify the amount of punishment. In either case,
their resolution now under discussion is altogether within
the powers conferred upon them.

Their Lordships do not think it necessary or useful to
advert to some minor points of discussion, and are, on
the whole, of opinion that the decision of the Court
of Appeal of Ontario should be affirmed, and this appeal
dismissed, with costs, and will so humbly advise Her
Majesty.

Judgments in Ontario Court of Appsal.

[Reported 7 App. Rep. ^6.]
SrnAooE, C. J. : —

[261] The only question is upon the conviction of the defendant,
who was licensed as a tavern-keeper in the city of Toronto, for allow-
ing a billiard table to be used in his tavern after the hour of seven
o'clock at night on Saturday, the 7th of May, 1881, in contraven-
tion of a resolution and enactment of the Board of License Com-
missioners of the city.

The selling of beer to a boy by the defendant is not in question.

PRIVY COl^NCIL.

The reasons of the defendant against the conviction are : 1st, that \8i<3
the Legislature of Ontario had not power to enact such regulations rr" ~'.
as were enacted by the Board of Commissioners, and to create v.

offences and annex penalties for their infraction ; and, 2nd, that if ^ h^i^ekn.
the Legislature had such power, it could not delegate such power to C.A.,Ontiirio.
the Board of Commissioners. Spragge, C.J.

[t was upon this second ground that the judgment of the Court
of Queen's Bench, now appealed from, is rested.

I do not propose to attempt a definition of the powers conferred
by tlie Imperial Parliament, by the B. N. A. Act, upon the Dominion
Parliament and the Provincial Legislatures respectively. They each
derive their powers from the same source ; and the power to make
laws in relation to the several classes of subjects, legislation ujion
which is, by the Imperial Act, committed exclusively to the Pro-
vincial Legislatures is as large and complete as it is in the classes of
subjects committed by enumeration of subjects to the Dominion
Parliament. The limits of the subjects of jurisdiction are prescribed ;
but within those limits the authority to legislate is not limited. I
cannot do better than to quote here the language of Lord Selhorne
in Regina v. Burah, (1). Speaking of the Council of the Governor-
General of India, upon whicli legislative powers were conferred by
the Imperial Parliament, he says : "The Indian Legislature has
powers expressly limited by the Act of the Imperial Parliament
which created it, and it can, of course, do nothing beyond the limits
[252] which ciicumscribe these powers. But, when acting within
those limits, it is not in any sense an agent or delegate of the Impe-
ri:d Parliament, but has, and was intended to have, plenary powers
of legislation, as large, and of the Fame nature, s s those of Parlia-
ment itself."

Looking at the classes of subjects legislation upon which ia com-
mitted exclusively tc the Provinces, it is very apparent that it was
intended that their Legislatures should possess very large and ample
powers in relation to all subjects of a local and domestic nature.
Tliey had pos essed plenary powers upon these subjects before con-
federation ; and the general scheme of confederation appears to have
been to leave to them the plenary control of these subjects. They
were, under the Act, Legislatures in regaid to theio subjects in the
true and full sense of the term. This is the more apparent from the
use of the words "exclusive" and "exclusively," (and they are

(1) 3 App. Gas. 889, 904.

if: >

;il

168

PRIVY COUNCIL.

ill

■

1883 used repeatedly) in the Imperinl Act. Other legialntion upon these

"■^ classes of subjects is excluded. No alteration, no amendment, no

,.. perfecting of any measure fiillin<^ within these classes of subjects.

The Cii'KKN. gj^n ]jQ niade by any authority outside of the Provincial Legislature.

C. A., Ontario. It is therefore necessary that the Provincial Legislature should

SurutTKe" C J Possess plenary power in relation to all these subjects, to change,

amend, repeal, re-enact, and in short to deal with them as change

of circumstances or other exigencies might render proper ; the pro-
priety of changes in any shape made, not to be challenged by any
other legislative authority, nnd the power to make them being
limited only by the rule, whether the law making the change is
within the class of subjects legislation upon which is assigned to
Pr )vincial Legislatures.

The H. N. A. Act confers a constitution ; distributively as to
powers of legislation ; and with those p avers necessarily all that was
needful to m ike those powers efl'ectual. This is well put by Mr.
Oooley, in hii work in Constitutional Limitations, 4th ed., p. 77 :
"The implications fiom the provisions of a constitution are some
times exceedingly important, and huve large influence upon its con-
[253] structiou. In regard to the Constitution of the United States*
(which it will be remembered has limited and enumerated powers —
Story's Constitution of United States, sec. 426),. the rule has been
laid down that whore a general powor'is conferred, or duty enjoined,
every particular power necessary for the exercise of the one or the
performance of the other, is also conferred. . . . Under eveiy
constitution implication must be resorted to, iu order to carry out
the general grants of power. A constitution cannot, from its very
nature, enter into a minute specitication of all the minor powers,
naturally and obviously included in, and flowing from, the great and
important ones wliich are expressly granted. It is therefore es-
tablished, as a general rule, that when a constitution gives a general
power, or enjoins a duty, it also gives by implication every parti-
cular power necessary for the exercise of the one or the enjoyment
of the other. "

We have the high authority of Vattel upon the same point. He
says, Book 2, c. 17. ss. 285, 6 : " The most important rule in cases of
this nature is, that a constitution of government does not and can-
not, from its nature, depend in any great degree upon mere verba
criticism, or upon the import of single words. Such criticism may
not be wholly without use ; it may sometimes illustr.ite or unfold
the appropriate sense ; but unless it stands well with the context and

PRIVY COUNCIL.

1G9

siibject-matter it must yield to the latter. While then we may well 1883

ivsort to the tiioaiiiiig of singlo words to assist our inquiries, we

, , , .... - H()ii(;k

should never forget tiiat it is an instrument of government we hto ,.,

to construe ; and a* has been already stated, tlmt must ho the truest Thk <.jlkkn.

exposition which hest liRrmonizes with its design, its objects, and its C.A., Onturio.

genenil structure." (1) Spra^ C..T.

One other consideration presents itself, which is, to my mind,

conclusive. This matter of licensing and of the regulation of places

iviid persons licensed pertains to municipal institutions, and is iiiure-

over of a local nature. Now, the making of 1 iws in relation to both

tlii'se subjects being committed exclusively to the Provincial Legis-

[2o4] latures, and legislation by any other p' .ver being tloreby

e.xdudeil, it follows that th« B. N. A. Act operates to withdraw from

legislative control by aui/ power or body whatever the licensing and the

regulation of places and persons licensed ; powers in regard to which

they had theretofore un<iuestionably exercised. The effect in that case

would be more and other tlian a distribution, of legislative power, it

would be an extinction of legislative power in regard to subjects wliich,

up to confeileration, had been subjects of Provincial legislation.

(1) [The passage here cited is from
Story on the Constitution, sect. 455,
but in a foot note Story' refers to
Vattel, Book 2, c. 17, ss. 285, 286—
The sections of Vattel referred to are
as follows] :

Sect. 285: " It frequently happens
that with a view to conciseness,
people express imperfectly, and with
some degcee of obscurity, things
which they suppose to be sufficiently
elucidated by the preceding matter,
or which they intend to explain in
the sequel : and moreover, words and
expressions have a different force,
sometimes even a quite different sig-
nification, according to the occasion,
thiir connection and their relation to
other words. The connection and
train of the discourse is therefore
another source of interpretation. We
must consider the whole discourse to-
gether, in order perfectly to conceive the
sense of it, and to give to each expres-
sion, not so much the signification
which it may individually admit of,
as that which it ought to have from the

context and spin't of the discourse
.S'lch is the maxim of the Roman
law, incivile est, nisi tota lege per-
specta, una aliqua particula ejus pro-
posita, judicare vel respondere.

Sect. 286: "The very connection
and relation of the things in question
helps also to discover and establish
the true sense of a treaty, or of any
other piece. The interpretation ought
to be made in tuchamantierthat all
the parts may appear consonant to each
other, — that what follows may agree
with what preceded, — unless it evi-
dently appear, that, by the subsequent
clauses the parties intended to make
some alteration in the preceding ones.
For it is to be presumed that the
authors of a deed had an uniform and
steady train of thinking,— that they
did not aim at inconsistencies and
contradictions, — but rather that they
intended to explain one thing by
another, — and, in a word, that one
and the same spirit reigns through-
out the same production or the same
treaty "

iV?

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170

PRIVY COUNCIL,

}IODOB
V.

The Qckkn.

I i
I j

1883 I will presently consider the question whether the imposing dutien

and conferring powers imposed by the Act of 1875-6 upon License
Commissioners was a new delegation of authority not contemplated

by tlio B. N. A. Act ; but before doing so it will be well to consider

C. A. , Ontario, this power to delegate, which is denied to the Provincial Legislature
Spragge C.J. by the judgment of the Court of Queen's Bench. Reginav. iiura/»(l),
is certainly no authority for the denial of such power. Lord Sel-
bdiiie gives his idea of the kind of power that cannot be delegated,
when he S'lys, at p. 905, that "the Governor-General in Council
could not, by any form of enactment, create in India, and arm with
general legislative authority, a new legislative power, nut created or
authorized by the Councils' Act." But no part of his judgment
countenances the idea that a legislative body niny not delegate to
others authority to make rules, orders, by-laws, or whatever may be
necessary to carry into effect the enactments of the Legislature itself
Sir James Stephen, in his argument in the Burah Case (1), gives
several instances of what he c.dls conferred discretion, and delegation
of authority. It would iii<leed be dilficult to conceive any' more
decided instances of delegation of authority, and that quasi legislative
autliority, than is to be found in the last as well as previous Muni-
cipal Institutiiins' Acts passed by the Legislature of United Canada
befire confederation ; and it is to be remefhbered that that Legis-
lature had no more power to delegate power upon that subject of
legislation, than had the Legislature of Oiitari> after confederation
[255] Besides the Municipal Institutions' Ac^, the Attorney-
General in his argument gives us several instances of legis-
lative delegation of authority by the Canadian Legislature
before confederation. One is the authority given to the Governor-
in-C uncil by sects. 9 and 10 of the Public Lands' Act, 23 Vict.
c. 2 ; another is the authority given by the Grammar Schools'
Act, 22 Vict. c. 63, to the Council of Public Instruction, to make
^ rules and regulations for the organization and government of

grammar schools ; and there arc besides the frequent instances of
power delegated to the judiciary to make rules and orders of
Court. I may instince the power delegited by 12 Vict. c. 6-4, to
• the Court of Chancery. After enumerating a number of subjects in

respect of which this power is given, this general power is delegated,
" to make such general orders from time to time as the Court may
deem expedient in relation to every other matter deemed expedient,

(1) 3 App. Cas. 889.

PRIVY COUNCIL.

171

for better attaining the ends of justice and advancing the remedies 188.S
of suitors ; with power from time to time to suspend, repeal, vary, '~^

or revive Huch orders ; " imd the only restriction upon the power so j..

confuired was, ihtit no such order should have the effect of altering TheQieln.
the jiiinciples or rules of deciNion of the Court. We know also that C.A., Ontario,
tlio Imperial Parliivnient has, fri>in time to time, delegatetl lirge Spratrtre C •!

powers of the like nature to the judiciary ; and in the recent Judica-

lure Acts, powers that aro essentially h'gislative in their character.

My conclusion is, that it cannot be correctly laid down as a pro-
position of law that a Legislature cannot delegate its powers, to
other bodies, or to boards of officers created by itself, in order to the
ciinying out its legislation upon particular subjects. It is not nect>»s-
ary to go further. It has been the course of legislation to do this
in EngLmd, an I in Ounala ; and also in the neighbouring Republic,
and it is manifest that a contrary doctrine would cripple legislation
to a very serious extent.

It is important to bear in mind thut the Imperial Parliament, in
[256] coi.imittmg to the Provincial Legislatures the making of law.s in
relation to municipal institutions, committeil to them as a subject of
Ii'gisliition that which was as it then stood and had stood for a
number of years, wholly a subject of delegated power from the
general Legislature. The power was conferred in as broad jnd
comprehensive terms as possible " to make laws in relation to."
That necessarily imported ex vi termini power to change the laws in
relation to that subject ; and as long as the changes made were
cli iiiges only in municipal institutions they were within the power.
Ill the then Province of Upper Canada at the d ite of confederation
township councils, county councils, city councils, boards of police
commissioners, were all parts of the machinery which, to take as an
instance the county of York, constituted a municipal institution.
Great changes might be made in all these pieces of machinery : their
powers and duties might be ch .ng d ; some parts might be left out,
e. (jf.town.ohip councils, or county councils, or boards of commis-
sioners, as making the nmchinery too cumbrous or too complicated,
or for any other reason ; and the powers and duties exercised by
tliosti left out might be committed to those remaining, or to some
new boards or other pieces of machinery substituted for them. I
c nnot see how it could be ultra vires the Provincial Legislature to
make all these changes provided they were changes only in relaiion
to municipal institutions.

In the judgment of the Court below it is said : " Our Legislature

, I

171

PHIVY COUNCIL.

■:!

fill i ^'

1883 hau certainly, (lelegfttnl to the Board of Licenno ComniiHsionerB the

~^ creation of certain new restrictions, and limitations on individual

HolKJE

,.. liberty of action. ... It Hconis very dithcult, in our judgment,

I H E 'ji KE.v. t„ i„ii,i ti,jjt ^ii,, (•(inft'dciation .\ct gives any such power of dele-
r. v., (»ntari<i. gating authority, tirst of creating a quasi ()H'enco,and then of punishing
SiuiiKge C.J. '' ^'y ''"*' """ i"'I'r''^<>"uient." If, in the ])a8sago tirst rjuoted it is
meant (as I tiiink it must he meant i that the Provincial Legislature of
[•257] Ontario lias delegated to the Board of License Commissioners
the power of creating new restrictions and limitations on individml
liberty of action, not possessed, i. e., the power not po.sscssed, by
comjionent parts or a component jiart of nmnicip d institutions, I am
unable to assent to the proposition. A short review of the legis-
lation on the subject as it stood at the date of confederation, and as
it has been altered since, within the jiowers conferred by the con-
federation Act, will shew this.

By the Municipal In.stitu.ions' Act of the late Province of Canada,
passed in 18()(), and which applied to Upper Canada only, different
provisions are made as to the licensing of taverns and shops, and
tlie licensing of billiard tables. Power to make by-laws for the
licensing of taverns (licenses to shops not being in question, I will
contino myself to the licensing of taverns and of billiard tables) was
conferred upon the councils of townships, towns, and incorporated
villages, and in cities upon the commissioners of police, and for
regulating the houses or places licensed ; and power to make by-
laws for licensing, regulating, and governing all persons keeping
billiard tables for hire or gam, in a house or place of public entertain-
ment or resort, was conferred upon councils of townships, cities,
towns, and incorporated vilhges. And these powers in relation to
billiard tables have remained unchanged in the same bodies.

Under the same Act, 1866, Municipal Councils had power to pas-*
by-laws for inflicting reasonable fines and penalties, not exceeding
850, for breach of any of the by-l.aws of the corporation ; and fur
reasonable punishinent by imprisonment, with or without hard
labour, for such breach in case of non-payment of fine and ctsts,
and in the absence of means of distress.

So far, power was not given to police commissioners in cities to
enforce the by-laws which they wer« authorized to make. They had
the same power to make by-laws for the licensing and the regulation
of taverns as the Municipal Councils had, but not the power to
[268] make by-laws for enforcing their regulations ; and the law
stood thus until the Provincial Act of 1869, 32 Vict. c. 32, was

I'UIVY CorNflL.

173

passed. This Act Cdiiferred ujioii cnniinissiniu'ra of luilioo in cities IS«3

till' same powur uf iiuikiiiK I)y-Iaw8 to fiifon-u tlit-ir by-laws in rela- ~

.... 11-, I , 1 HOIIGK

tioii til tlio hconsingantl irgulalinii of tavornaa» was already ii(i8.HU8Hed r.

liy the Miiiiiciiml Cmincils. Tlio Act did nut cnnfer nixm tlie com- rnK <i\. kkx.

iiii.s,sionur8 an nnliniited riglit tn name the puni.thment for infraction C.A., OntHiiu.

of tliuir by-laws, but to attach iienalties for their infraction in the y.,rngg«', ('..I.

Biuii-' manner and to tlie extent that by-laws of city councils might

bo enforced under the Mnnicipal Act of 180(5 ; thus placing the

coiiiniissioners of police in cities upon the '<ame footing in all respects

ii8 regard.^ the licensing and regulation (jf taverns h.s the councils ot

uuinicipal bodies other than cities, as was evidently intended by the

Act of 18(>(5.

The Act of 1H74, which related only to tavern and shoj) licenses.
niJide no diflference in this respect. It re-en.acted in substance the
linivisions of the Act of 18()(! as to the licensing and regulating of
tavern and shop licenses, etc. ; it made it a matter of legisia^i.e
enactment that in all places where into.\icating liquors may be uuld
no sale or other disposal 'hereof should take place between 7 p. ui.
(Ill Saturday and G a. m. on tiie following Monday ; adding peualtit.-
t'di' the infrac n of this provision.

The Act of 1875-G, by which the Board of Lic>'nse Commissioners
was constituted, transferred to that body all powers and duties
C'liiferred and imposed upon the connnissioners of police and
Municipal Councils, respe-.tively, by the Act of 1874 ; and that body,
on the 25th of April, 1881, by what it calls a resolution, enacted
that no licensee of a tavern should inter alia, allow a billiard table to
be used therein during the time prohibited by the Liquor License
A.t — the Act of 1875-0— or by the resolution then parsed ; and it is
fur allowing billiards to be played in contravention of this resolution
or enactment that the defendant has been convicted.

[269] I do not myself entertain any doubt as to the power of the
Irovincial Legislature to make the change made by the Act of 1875-6
in the municipal law as it then stood. I think it is to be regarded
as only a change in the machinery by which the municipal institu-
tions of the Province had theretofore been worked ; and as the power
to make laws in relation to municipal institutions was conferred
upon th<it Legislature by the confederation * ct, it clearly, in my
ju igment, had the power to make that change.

If the change was intra vires the license commissioners had the
same power to make by-laws in relation to the licensing of taverns,
and in regard to " regulating" licensed taverns, as, under the Act

nil

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PRIVY COUNCIL.

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1883 of 1866 and the other Art) to which I have referred, was possessed

"^ by municipal councils and commissioners of police, respectively. I

,•. think it very clear, and I do not indeed understand it to be denied,

IH E (jC EEW. ^jj^j. ^]^0^Q bodies nad power, under their authority to make by-laws

C. A., Ontario, for declaring the terms and conditions required to be complied with

Spragge, C.J. ^y licensees of taverns and for regulating licensed taverns, to pre-

scribe hours during which the licensee should not permit billiards to

be played in his tavern. There are a number of American cases

upon the subject which are collected by Mr. Dillon in his work on

Municipal Corporations, under the head : *' Authority Delegated to

Municipalities." I think it too clear to need the authority of decided

cases. I will, however, refer to the judgment of Baron Martin in the

Attoniey-General v. Radloff (1) ; and to the judgment of our Court

of Queen's Bench in Kcgina v. Boardmun (2).

So far as to the delegation of power to create restrictions and lim-
itations on individual liberty of acti 'n. The quasi offence created
is the contravention of the jegulations made by by-laws as to the
hours during which games of billiards, ba>;atelle, and games of the
like description may be played in taverns.

Then as to the delegation of power to boards < f commissioners of
police arid the transference of tliat power to bonrds of license coni-
[260] missioners, to make by-laws for attaching penalties to the in-
fraction of tlu'ir by-laws in relation to the licensing and the regula-
tion ef taverns. I have already observed that the power conferred
was limited to that already possessed by municipal coujicils. Still it
must be conceded that it was th(^ delegation of a power to impose
tines to a limited amount ; and in case of non-payment, and tlie
absence of distris-s, to imprison for a limited period, i. e., not
exceeding twenty-one d<ays ; and the question is, whether this falls
within the power conferred of making laws in relation to municipiil
institutions and clause 16 of sect. 92 of the confederation Act ; and
this appears to me the only point presenting any lUfliculty in the
case.

Amon,L{ the subjects in relation to which exclusive power to make
laws is, by sect. 92 of the confederation Act, committeil to the Pro-
vincial Legislatures is this, numbered 15 : " The imposition of pun-
ishment by fine, penalty, or imprisonment for enforcing any law of
the Province m ide in relation to any matter coming within any of
the classes of subjects enumerated in this section." What the Pro-

(1) 10 Ex. 84, 96. (2) 30 U. C. Q. B. 663 ; ante vol. 1, p. 670.

hi!

PRIVY COUNCIL.

vincial Legislature enacted by sect. 38 of the Act of 1869 was in 1883

substance this : tiiat licensees of taverns in cities should be punish- ^""^

alile for breach of by-laws made by commissioners of police, in the ^.

manner and to the extent that they were punishable for breach of Th k Ql ken.
by-laws in respect of the same subject matter made by municipal C. A., Ontario,
councils. The commissioners, it is true, were authorized to make gpragcre C.J.

by-laws " attaching penalties for the infraction thereof," but that

power was expressly limited to the power conferred upon other
bodies having' the same powers in regard to licensing. Suppose
sect. 38 had been silent as to by-laws attaching penalties, and had
enacted only that licensees of taverns in cities should be subject to
the same puni^^hment for breach of by-laws made by commissioners
as licensees in other municipalities are subject to for breach of by-
laws made by councils, Wv)uld such an enactment be ultra vires ? It
was a latv of the Province made in relation to municipal institutions,
enacting that by-laws made by bodies which, at the date of confed-
eration, were component parts of municipal institutions, and [:2(jl]
with power to make these by-laws, should be enforced ; and enacting
how they shall be enforced, viz.: in the manner and to the extent
in which by-laws of councils may be enforced. It would be only
enacting, in another shajje, that licensees of taverns infringing these
b) -laws should be punishable by fine, etc., describing the punish-
ment as in the Act of 1866. I cannot think that such an enactment
would be ultra vires It would be within all the conditions of No.
15 of sect. 92. Is it then less a law of the Province that is enforced
by this enactment because, in addition to limiting tlie punishment, it
requires that it shall be deiined by by law. That indeed '3 the real
effect of the words used. The power of the police or other magis-
trate having cognizance vi the ofl'ence would be larger in the inflic-
tion of punishment without the requirement that by-laws "to attach
penalties " should be passed, for without such provision he would
be limited only by the Act of 18U6, while with that provision his
power is limited both by the Act and the by-laws, as it ii clear that
the by-law could not attach penalties beyond those authorized by
the Act. The conviction then, in such a case, would bo for breach
of a by-law deriving its authority from the Act of 1866, amended,
within the power of the Legislature, by the Act of 187r)-6 : and the
conviction and punishment are, under the authority of the Act of
18t)9, lor an oll'once against the provincial law of Ontario.

There is, moreover, this very important consideration, that if an
infraction of tavern license by-laws made by Police Commissioners,

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PRIVY COUNCIL.

1833 and then subsequently by License Commissioners, cannot be made

""^ punishable by provincial legislation, they cannot be made punish-

,. ' able at all, for they are not infractions of any law other than the

The (jt'EEN-. ig^yy yf j]jg Province ; and laws of tlie Province in relation to muni-

O.A., Ontario, cipal institutions can only be enforced by the imposition of punish-

Siu-affRc" C.J "i^"* under the authority of provincial legislation. My conclusion

therefore upon both these points is, that the legislation of tl'" ^ i-

vincial Legislature was intra vires.

[262j It is, however, matter of surprise and regret that the city
officials concerned in the information laid against the defendant, and
its prosecution, should have prosecuted as lor an offence against the
resolution of the licei.se commissioners, instead of prosecuting for an
oQVnce iigainst the by-law of the city itself, in relation to the licens-
ing and regulation of billiard tables. By the Municipal Institutions'
Act of 18G(5, power was conferred upon the municipal councils of
cities as well as otiier municipalities, to make by-laws for licensing,
regulating, and governing all j^crsons who, for hire or gain, keep
biliard tables, or have a billiard table in a house or place of public
entertainment or resort ; and for lixing the sum to be paid for such
license. This power was renewed in the same terms in the iluni-
cipal Institutions' Act of Ontario 1873, and again in the R. S. O,
c. 174.

Under the authority thus conferred, the municipal council of the
city of Toronto passed by-law No, 477, printed in the appeal book,
at pp. 6, 7, fixing the sums to be paid for licenses ; and making
regulations in regard to tlie licensees and the use of their tables ;
among others this, th.at every licensed billiard-room situate in any
place of public entertainment or res'>rt, sliall be closed from and
after the hour of seven on Saturday night, till the hour of six on
Monday m rning thereafter. And tlie conviction and the evidence
up')n whicli it was founded, botli shew that every fact necessary to
shew the defendant an offender against the by-law was proved ; and
the penalty adjudged against the defendant was within the penalty
authorized by the same statute for breach of by-laws of corporations.

If this plain and obvious course had been pursued, the only ques-
tion that could have arisen would have been, whether the provisions
of the Municipal Institutions' Act, in force in Upper Canada at the
date of confedeiation have been abrogated, a question upon which I
think no reasonable doubt can be entertained.

We are informed that this is a test case. If by this it is meant as
a test whether the licensee of a tavern or other place of public enter-

PRIVY COUNCIL.

177

tainment within the description contained in the Act of 1866, [263] 1883
and being also the licensee of a billiard table within the description ^"^
contained in the same Act, is or is not liable to conviction for the act y_

for which this defendant was convicted, I am prepared to say that I ThkQuken.
see no reason whatever for doubting that he id liable to such con- C.A., Ontario.

miction. Spra^ C.J.

Whatever doubt may exist as to this conviction is due to the unto-

ward ingenuity displayed by the city officials in complicating the
real substantial question between the city and the licensees of billiard
tables, by the course adopted by them in the charge and the
prosecution of the offence.

Burton, J. A. : —

[272] The questions raised upon this appeal are of great general
importance, involving as they do the power of the Provincial Legis-
lature to pass enactments for enforcing their own laws by tine or
imprisonment, or, assuming them to have the power, their authority
to delegate it within certain limits to a Municipal Council or other
local board.

The duty of deciding upon the validity or invalidity of an Act of
the Dominion Parliament or Local Legislature by reason of their
transcending the limits of their legislative power, is one which the
Courts of this country were seldom called upon to consider before
the paf=sing of the B. N. A. Act, but questions of the kind have tor
many years been the subject of discussion and decision in the Courts
of the United " ^e8, and we can scarcely do better than adopt the
sound rule established in those Courts, wlien placing a judicial con-
struction on constitutioniil provisions, which declares, that in case of
doul)t every possible presumption and intendment will be made in
favour of the constitutionality of the Act in question, and that the
Cou.ts will only interfere in cases of clear and unquestionable
violation of the fundiimental law.

It must also not be "lost sight of that the powers intended to be
conferred upon the several Legislatures of the Domini(jn and the
Provinces were necessarily expressed in very general terms, it being
foreseen by the framers of the measure that it would be a perilous
and difficult, if not impracticable task, to provide for minute speciti-
cations of their respective po.vers, or to declare the means by which
they should be carried into execution.

The leading features of the scheme of confederation were that the
Provinces should have full and exclusive control over their internal
12

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178

PRIVY COUNCIL.

HODOE

THK QUKEN.

1883 [^3] afiairs, and the power to make laws for the general order and
good government of the Provinces, whilst the like power to make
laws for the peace, order, and good government of the entire
Dominion, in relation to all matters not coming within the classes
C. A., Ontario, of subjects assigned exclusively to the Legislatures of the Provinces,
Burton J.A. '^^^ given to the Dominion Legislature.

The powers so granted to the Provincial Legislatures are in some

respects fully as important as those given to the Dominion, as for
instance the exclusive power to deal with property and civil rights,
the administration of justice, and the constitution of the Courts,
whilst those granted to the Dominion are more national in their
character, or, to cite the language of the Colonial Secretary in intro-
ducing the bill, " The real object which we have in view is to give
to the central government those high functions and almost sovereign
powers by which general principles and uniformity of legislation
may be secured in those questions that are of common import to all
the Provinces, and at the same time to retain for each Province so
ample a measure of municipal liberty and self-government as will
allow and indeed compel them to exercise those local powers which
they can exercise with great advantage to the community."

But as to each the Imperial Act was intended to define as accur-
ately as could be done in a constitutional charter, their relative
powers ; all matters of a local and private nature, including those
specially enumerated in sect. 92, being given to the Provincial Legi?-
latures, and the remainder of the legislative powers necessary for the
peace, order, and good government of the Dominion, including those
specially mentioned in sect. 91, being considered as general powers,
and entrusted to the Dominion Parliament.

The case of Dobie v. The Temporalities Board (1), recently decided
in the Privy Council, is an illustration of this distinction. The Act
there in question, passed by the Legis'ature of Quebec, professed to
deal with a single statutory trust, and interfered directly with the
constitution and privileges of a corporation created by an Act of the
[274] late Province of Canada, and having its corporate existence
and corporate rights in the 1 rovince of Ontario as well as in the Pro-
vince of Quebec.

It clearly did not fall within any of the classes of subjects enumer-
ated in sect. 92, it was not a matter of a local or private nature, an'l
could therefore only be dealt with by the Dominion Parliament.

(1) 7 App. Gas. 136; ant'-, vol. 1, p. 351.

PRIVY COUNCIL.

179

Within its range then each has an exclusive power ; the only ca^e 1883
in which a concurrent power is given is in sect 95, to make laws in ^T^

. , , . • ,1 .1, HODOK

relation to agriculture and immigration, and there it is specially pro- f.

vided that the Provincial legislation may be overridden by the ThkQuken,
Dominion Parliament. C.A., Ontario.

But there are cases in which the power is given generally to the Burton J. A.

Provinces to deal with a particular subject. Take for instance

property and civil rights, which in those general terms would
comprise the power to regulate contracts of every kind, including
bills of exchange and promissory notes. When therefore we find the
Dominion entrusted with the exclusive power to legislate upon bills
and notes, the only way to make thr^ Act consistent is to read this
as an exception to the general power granted to the Province. So
again, although the Provinces have exclusive power under sub-sect. 14
to make laws in relation to the administration of justice in th(. Pro-
vince, including the constitution, maintenance, and organization of
Provincial Courts, both of civil and criminal jurisdiction, when we
find bankruptcy and insolvency mentioned as a subject for the
exclusive legislation of the Dominion we must necessarily under-
stand that the organization of an Insolvent Court, and administration
of justice and proceedings connected with insolvency, are excepted
from the general words of that sub-section.

But to that extent only can the Dominion Parliament assume to
interfere. Reading the powers granted in sect. 92, with the excep-
tions where they occur in sect. 91, the Local Legislature is absolute
and supreme over those subject matters with as ample power to legis-
late in respect of them as the Imperial Parliament, and without any
possibility of interference by the Dominion Legislature.

[275] Adopting the same rule of construction, sub-sect. 15 of s ct^
92, must, in my opinion, be read as an exception or modification of
sub-sect. 27 of sect. 91, which vests in the Dominion Parliament the
[jower to deal generally with the criminal law.

The powers claimed to be exercised b\ the Provincial Legislature
in the present case must depend upon the construction to be placed
on sub-sects. 8, 13 and 16, of sect. 92, for I agree with the learned
Chief Justice that a right to license an employment does not imply
a right to charge a license fee therefor, with a view to revenue,
unless such seems to be the manifest purpose of the power. Th&
right to restrict parties by requiring a license must be sought for
under the sections I have referred to, and not under sub-sect. 9, •

which was passed not for the purpose of conferring the power tO'

^i,^

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PRIVY COUNCIL.

t|i

1883 issue licenses, but to ensble the Provinces by that means to raise a

■~'~ revenue for provincial, local, or municipal purposes. The onlv

Hodge *

y_ power of taxation given by sub-sect. 2, is that of direct taxation.

Th e Qu ern. Sub-sect. 9 was intended to allow them in this particular ni' de to

C.A., Ontario, raise a revenue by indirect taxation.

Burton J. A. '^^® other sections vest in them the power to make laws in relation

to municipal institutions, property and civil rights, the impo.sition

of punishment in the manner specified for enforcing any law of the

Province made in reference to any of the classes of subjects under

sect. 92, and the general power as to all matters of a merely local or

private nature in the Province.

At the time of confederation the Municipal Institutions' Act of
1866 was in force, and under it the municipal councils were empow-
ered to pass by-laws and to fix the punishment within certain defined
limits for their infraction. To the police conimissionershad been trans-
ferred a power formerly vested in the council to pass by-laws regu-
lating taverns, and to prohibit the sale of liquors without license, but
no power was given at that time to the commissioners to enforce the
performa'ice of these by-laws by tine or otherwise, and by sect. 129
of the B. N. A. Act, this law was continued in force until repealed
[270] or altered by the appropriate Legislature.

It was at that time dealt with by the Parliitment of the Province
of Canada as coming within what were known as municipal institu-
tions, the power of dealing with which is now within the exclusive
jurisdiction of the Provinces ; and it would certainly come within
the general clause which confers exclusive i^ower on the Provincial
Legislature to deal wi h matters of a merely local or private nature,
and does not I'.iU within any of the subjects with which the Doniin-
inn Parliament lias power to deal, unless, perhaps, by a general
moa'sure afiectiii^' the whole Dominion, which has not been done.

We accordingly liiid the Local Legislature dealing with it in 18(50,
and giving power to the connuissioners to attach penalties for the in-
fraction of their by-laws in the manner and to the extent that by-
laws of the City Council might be enforced under the Municipal
Act of 186G. And the same powers and duties have, as the leavned
Chief Justice has pointed out, been transferred to the Board of
License Connnissiouers.

Before dealing with the question of delegation, can it be supposed
for a moment that the Imperial Parliament intended to confer upon
the Local Legislatures power to pass laws without the means of en-
forcing them ; and yet it was gravely urged in argument that the

H <i

PRIVY COUNCIL.

181

right to enfo ce them by imprisonment would in each Ciise ilepencl 1883
upon the will or action of the Dominion Parliament. ^"^

Every government which is supreme nnist have the capacity to ,..

niiik>> its own conmanils obeyed. The Provincial Legislatures, as I Th e (ju eex.
have shewn, within tJxeir r.^spective spheres, are absolutely supreme. C.A., Ontario.
It follows that wherever the Provincial Legislatures have pnwtr to B„rton J. \.

enact any particular measure, wherever tliey may require anything

to be done or forborne in carrying out the powers granted to them
by the Imperial Parliament, they must have of necessity tlie power
to enft)rce, and we should not look for any express power but for
[277] tlie fact that the criminal law generally is givcii to the Do-
iiiiniiiii. Hence it became necessary to give express and exclusive
power to the Provincial Legislatures to declare acts of disobedience
cir acts which have a tendencj' to interfere with the [irupose i meas-
ures to be crimes, and affix such punishments as it deemed proper.

I incline to agree witli the learned counsel for the defendant that
tlie otlence here charged comes within the definition of a crime,
which has been said to be " an act of disobedience to a Law forbidden
under pain of punishment ;" (1) but it does no*' follow that it must
fir can be dealt with by tlie Dominion Parliament.

As I have already pointed out, the statute has to be conjtrued as
a whole, and where some specific matters are mentioned as within the
exclusive power of one body, which but for that reference would
fall within the more general description of a subject matter confided
to the other, the statute must be read as excepting it from that
geiitral description.

If, therefore, it be a crime, the power to punish it is expressly
excepted from the general power over the criminal law given to the
Dominion, and vested exclusively in the Province, if it is in)tacrinu*
cadit qufcstio.

I come to the conclusion that the Provincial Legislature, and the
Provincial Legislature alone, has the power to pass laws for the in-
fliction of penalties or imprisonment for the enforcement of a law of
the Province in relation to a matter coming with a class of subjects
with which alone the Province has the right to deal.

Having this power had they a right to delegate it as they have
done to this Board of Commissioners ? The learned Chief Justice
of the Queen's Bench says : " Such a delegation was of course unob-
jectionable when done by a Legislature of unlimited authority in

(1) Harris' Principles of the Criminal Law, p. 1, citing from Sir J. Fitz-
Jamcs Stephens' work.

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PRIVY COUNCIL.

■if

Burton, J. A.

iHl

, r

■i ,' ■

-;^ It

1883 both criminal and civil proceedings," meaning thereby the Le^isla-

_~^ ture of the old Province of Canada.

V, [2~3] ^t appears to me that if this be sound law, and I think it is,

The Qukkn'. j^ furnishes a solution of the question.
C. A, Ontario. It would soem almost a misapplication of terms to refer to the
Provincial Legislature as exercising a delegated authority in the
sense of being an agent or delegate of the Imperial Parliament. The
Imperial Parliament has the power, no doubt, to pass laws such as
those passed by the Local Legislature and affecting all Her Majesty's
subjects in the Province, but it is equally clear that it is a power
existing in name only, and one which it would never attempt to
exercise, and therefore the Parliament of the Provincn cannot in
that sense be spoken of as exercising a delegated autliority.

It is true that Parliament gave both to the Dominion and to the
Provinces the constitutions under which we live ; both limited in
extent, but both giving representative institutions, and giving to the
Legislaiures elected in the manner therein pointed out, plenary
powers of legislation within their respective spheres as large and
ample as those of the Imperial Parliameiit itself. The Legislatures
so elected have a delegated authority it is true, but it is of the
same charactt'v as that of the Imperial Parliament, who are collec-
tively the delegates of the whole people.

If these are powers which the Imperial Parliament could have
delegated, then they can equally be so delegated by the Legislature
of our own Province ; if not, then it is unnecessary to add that they
cannot be so dealt with by a Provincial Legislature.

I take the case of Regina v. Burah (1), referred to in the Chief
Justice's judgment, to be clear auhority for this ; but it is not con-
clusive as 'o this being a delegation of power which would be within
the power of the Imperial Parliament.

In the celebrated case of the Aitomey-General v. SiUem (the
Alexandra Case), (2), this question was much discussed, and although
there was a difference of opinion among the Judges, some of them
holding; that the power was not given by the statute to make the rule
[279] in question, none of them appeared to entertain any doubt as
to the right of Parliament so to delegate its authority. Referring
to the objection, the late Mr. Justice Willes, at p. 609, says: "I think
that must fail in the mind of anyone who considers the numerous
instances of a similar delegation within the experience of us all. The

(1) 3 App. Caa.

(2) 2 H. & C 431.

PttIVY COUNCIL.

183

course of pleading, for instance, in the Courts which I may call 1883
Courts of first instance, was always considered to he as much a '~^
part of the law of the land as any substantive rule for deter- v.

mining a right of property, or any other right ; and it was always Th e Qu ken.
held that such a law could not be changed without the authority of O.A., Ontario,
Parliament, and yet the noble and learned framerof the Act, known Burton J, A.

as Parke's Act, the 3 & 4 Wra. 4, c. 42, conferred upon the Judges

the power, in eflfect, of legislating with respect to such a portion of
the law of the land. It is true that the power given in that Act
was subject to the rules being laid for a certain period before Parlia-
ment. But inasmuch aa Parliament, without the CVown, could not
make a law — inasmuch as Parliament, constitution>»lly, could not
give its assent to an Act of Parliamen ^,, simply by having the paper
upon which the bill was written or printed laid before it, and inasmuch
as in form and substance the assent of the Crown could only be
given when both houses of Parliament were present, in effect the
power of legislating was given to the Judges with respect to such
portion of the law Now, after referring to such an in-
stance as that, one la almost ashamed to refer to the numerous cases
in which towns and other local communities are allowed to deter-
miud by the voice of a majority whether certain Acs of Parliament
for local government shall or shall not have power within the limits
in which the inhabitants reside, and to make amends for referring
to such an instance, I shall content myself for a proof that the dele-
gation of legislative power is no objection, with referring to the
223th" section of the Common Law Procedure Act of 1852, by which
Her Majesty in Council was authorized to direct that all or any part
of that Act of Parliament, making very great changes indeed in the
law, should apply to all or any Court or Courts of Record in Eng-
land or Wales, and that without any authority of the House of Lords
or the House of Commons."

I wish to add that L fail to see any grounds for a distinction iu
this respect between the powers of a Parliament or Legislature
acting under the constitution given to us by the B. N. A. Act and
those confersed under the constitutional Acts of 1791 and 1840, and
numerous cases are to be found in which those Legislatures delegated
their authority.

In my opinion the judgment should be reversed, and this appeal
allowed.

,1k

Lf
liltil

■M''

Patteksoit and MorRisoh, J J. A., concurred.

■M

184

PRIVY COUNCIL.

4a,

1863

HODGK

Q.B., 'Jntariii.
Hagarty, C.J.

•

. Judgment in the Ontario Court of Queen'.s Bench.

[Reported 46 U. C. Q. B. UL]

Haoaiity, C. J. : —

[145] It was stated to us that the parties desirod to present directly
to the Court a very important (juestion whether the Local Legislature,
assuming that it had the power tliemselves to make theiie regulations
and create tliese offences and ainex penalties for their infraction,
could delegate such powers to a Board of Commissioners, or any
other authority outside their own legislative body.

The R. 8. O. c. 181, sect. 3, appoints a Board of License Commis-
sioners of three persons.

Sect. 4. " The License Commissioners may at any time before
the 1st day of May in each year, pass a resolution or resolutions fur
regulating," etc.

[140] (1.) " For defining the conditions and qualifications requi-
site to obtain tavern licenses," etc.

(2.) " For limiting the number of tavern and shop licen.ses," etc.

(3.) On the same subject.

(4.) " For regulating thf? taverns and shops to be licensed."

(5.) "For fixing, etc., the duties, powers and privileges of the
Inspector of Licenses," etc.

Sect. 5. "In and by any such resolution of a Board of License
Commissioners the said Board may impose penalties for the infraction
thereof."

Sect. 70. *' In all cases where the Board of License Commissioners
in cities passes a resolution in pursuance of the powers conferred
upon them by the fourth and fifth sections of this Act, and in and
by any such resolution, penalties are imposed for the infraction
thereof, such penalties may be recovered and enforced by summary
proceedings before the Police Magistrate, etc., in the manner and to
the extent that by-laws of municipal councils may be enforced under
the authority of * The Municipal Act,' and the convictions in such
proceedings may be in the form set forth in sect. 407 of the said last
mentioned Act."

37 Vict. c. 32 (1874) sect. 9, O., allowed the Commissioners of
Police iu cities to pass by-laws much to the same effect as the revised
Act allows. Sect. 48 gives them power by such by-laws to attach
penalties recoverable before police magistrates to the same extent

PRIVY COUNCIL.

185

1883

HODCJE

TlIK (^lEEX.

that by-laws of city councils might be «nt'orced uiuler tho Muiiicii>Al
Act.

At the time of confederation the law appears to have been under
the Act of Canada, 1866 : 29 & 30 Vict. c. 51.

By Feet. 249 the Conunissionera of Police in cities miu'ht puss by- 'j.B. , On tario,
laws for granting tavern licenses, and by sub-sect. 2 for declaring the Hagarty, C.J.
terms and conditions recpiired to be ci>mplied with by applicant.s,
and the security to be given for obseri'ing the same.

By sub-sect. 6, for regulating the houses or places licensed.

By sect. 262, the same body by by-law could appoint License
Inspectors, and define their duties.

[147] Sect. 284 emp)wered the city council to pass by-laws to
prevent the sale or gift of liquor to a child, apprentice, or servant,
without the consent of a parent or master, etc.

The statute contains direct provisions and penalties for breach of
its several provisions respecting taverns, as in sects. 2.'j4 to 2G0. We
iind no power given by the Act to any other body to create any now
ollence as to keeping a tavern.

Sect. 246 allows tlie council to pass by-laws (sub-sect. 6) for in-
flicting reasonable limited penalties or fines (inter alia) for breach of
any of the by-laws of the corporation ; and (sub-sect. 8) for limited
imprisonment for breach of any of the by-laws of the council, where
the fine is not paid, "except for breach of any by-law or by-laws in
cities, and tho suppression of houses of ill-fame, for which the im-
prisonment may be for any period not exceeding six months," etc.

This Act was amended in the first session of Ontario, .31 Vitt.
c. 30. In the next session an Act was passed as to tavern licenses,
32 Vict. c. 32.

By sect. 6 the Commissioners of Police in cities might pass by-
laws as to issuing of licenses, etc . ; and by sub-sect. 2 the terms and
conditions to be observed by applicants were declared. Sub-sect. 6
regulated the houses or places to be licensed.

Numerous provisions are contained in the Act to be observed,
and penalties provided for their infraction.

Sect. 38 allows the Police Commissioners, when authorized under
this or any other Act or law, to make by-laws. They shall have
power by such by-laws to attach penalties for the infraction thereof,
to be recovered summarily, and in the manner and to the extent
that by-laws of city councils might be enforced under the Municipal
Act of 1866.

liS/:>;-

— .'..Jif ■.-

'4
'lis

h 'i

IK )u

- 1

)■

: i

■i '111

HODOK
V.

The Qukkn.
Q.B., Ontario,
Hagarty, C.J.

186

PRIVY COUNCIL.

Thifl seems to be the first legislation empowering a Board to
attach penalties to their by-lawn as to taverns, apart from the powers
{,'iven to Municipal Councils.

There was another amendment by 33 Vict. c. 28, not affecting
this question.

[148] The license law is further amended by fresh provisions and
l>onalties being enacted, 3(5 Vict. c. 34, sect. 8, directing the Police
Comniisnioners to appf>int an officer for the observance and enforce-
ment of any by-law of the municipality with respect to tavern and
fihop licenses.

Tlie Consolidated Municipal Act of 1873, sect. 337, repeats the
already (juoted provision of the Act 32 Vict. c. 32, sect. 38, as to
the Board of Commissioners attaching penalties for the infraction
of their by-laws.

The Act of 1874 professes to consolidate the Acts as to tavern
licenses, and 37 Vict. c. 32, sect. 48, repeats the same clause just
cited.

39 Vict. c. 26, sect. 1, 1875, declares that ail powers and duties
conferred on Commissioners of Police and Municipal Councils by
the 37 Vict. c. 32, shall hereafter exclusively belong to and be
exercised by a Board of License Commissioners of three pers )ns, to
be appointed by the Lieutenant-Governor in Council.

40 Vict. c. 18 makes additional provisions as to the License In-
spectors and the general regulations of taverns.

The next legislation is under the R S. O. c. 181, already cited, in
effect substituting the Board of License Inspectors for the Board of
Police Commissioners, under the 37 Vict. c. 32.

An Act of last session, 44 Vict. c. 27, sect. 17, allows an appeal
from any judgment, quashing a conviction under R. 8. O. c. 181,
in the option of the Attorney-General.

It is conceded that these coDvictions are for the breach of certain
provisions contained in these resolutions, and rest wholly on them
as creating the liability to penalty and to punishment, and that such
penalty, etc. , is wholly the creation of such resolutions. We are
thus brought in face of a very serious queittion, viz., the power of
the Ontario Legislature to vest in the License Board the power of
creating new offences, and annexing penalties for their commission.

Down to the date of confederation we find no such powers given to
[149J any such Board. Large powers were delegated to municipal
councils to pass by-laws for various specified objects, and to annex
fines to a named limit, and penalties of imprisonment for a limited

.,. |,j

PRIVY COUNCIL.

187

HonoK

period for the nonpayment of such penalties. Such a delegation was 18A3

of course unobjectionable when done by a Leg'«Uture of unlimited
authority in both criminal and civil proceedings.

The B. N. A. Act completely re-arranged our constitution and Thk Queen.
established the Dominion and Provincial Governments with detined Q.B., Ontario,
powers and dutie fl. Hagaity, C.J.

The criminal law and procedu e in criminal matters are reserved
for Piirliiiment.

In each Province the Legislature may exclusively make laws in
relation to certain specified matters. Aiiumgst them are Municipal
Institutions, Shop, Tavern, Auctioneers' and other licenses, in order
to the raising of a revenue, etc.

" The Administration of Justice in the Province, iucluding the
constitution, maintenance, and organization of Provincial Courts,
both of civil and of crim' i v jurisdiction, and including procedure in
civil matters in those Coui cs," is provided for.

" The imposition of punishment by fine, penalty, or imprisonment
for enforcing any law of the Province made in relation to any matter
coining within any of the classes of subjects enumerated in this
section (92) ;" and " generally all matters of a merely local or private
nature in the Province."

It seems reasonably clear that all legislative powers throughout
the Dominion rest wholly on this Federation Act — the work of the
Imperial Parliament, having unquestioned jurisdiction over the
Empire of which we form a part.

In Leprohon v. The Corporation of the City of Ottawa (1) I had
occasion, with the other Judges in Appeal, to discuss the relative
positions of the Dominion arid Provincial Legislatures.

The subject is fully discussed in the Supreme Court, in such cases
as The City of Fredericton v. Th« Q^leen (2); Valin v. Lamjlois (3);
[150] Severn v. I%e Qtieen (4) ; Citizens' Ins. Co. v. Parsons (5).

As we are obliged to hold that our Legislature is not acting under
an original jurisdiction, but under the special authority given to it
by the Confederation Act, we have to decide now whether this special
power has been exercised, or some larger power endeavoured to be
exercised beyond the grant.

(1) 2 App, Rep. 522 ; anU, vol. 1, (4) 2 Can. S. C. R. 70; ante, vol.
p. 592. 1, p. 414.

(2) 3 Can. S. C. R. 505 ; ante, vol. (5) 4 Can. S. C. R. 215 : ante, vol-
2, p. 27. 1, p. 284.

(3) 3 Can. S. C. R. 1 ; ante, vol. 1,
p. 158.

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i'S'

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• ••H

'■ ■ ^^IS

■

188

PRIVY COUNCIL.

I! (

r 1

18*<3 Our Legislature has certainly delegated to the Board of License

Commissioners the creation of certain new restrictions and limita-

,.. tions on individual liberty of action.

The (ji-KEN. j,j J{g,|^,,^(^ y^ Bnrah (1) Lord Selborne, at p. 904, says : " Tne

<^-B., Ontario. Indian Legislature has powers expressly limited by the Act of the

Haifartv C.J. IJi^pt^riiil Parliament which created it, and it can, of course, do

nothing heyond the limits which circumscribe these powers. But,

when acting within those limits, it is not in any sense an agent or

delegate of the Imperial Parliament, but has, and was intended to

have, pleiiaiy powers of legishition, as largo, and of the same nature,

as tliose of Parliament itself."

This was in reference to an Act of the Indian Legislature, which
excludes the jurisdiction of the High Court within certain districts,
which was held not to l)e inccmsistent with the Indifvn Hig'i Court
Act (Imperial). The 9th sec^. of the Indian Act confei red upon the
Lieutenant-Governor of Bengal the power to determine whether the
Act or any part of it should be applied to a certain distr'ct. This
was held to be conditional legislation, and not a delegation of legis-
lative power.

Lord Selborne says, at p. 90o, it leaves " to the Lieu*enant-Gov-
ernor to sny at what time that change shall take place ; and also
enabling him, not to make what laws he pleases for that or any
other district, but to apply by public notitication to that district any
law, or part of a law, which either already was, or from time t > time
inigiit be, in force, by proper legislative authority, 'in the other ter-
ritories subject to his government.' ....

"The proper Legislature has exercised its judgment as to place,
person, laws, powers ; and the result of that judgment has been to
[151] legislate conditionnlly as to all these things. The conditions
having been fulfilled, the legislation is now absolute. Where
plenary powers of legislation exist as to particular subjects,
whether in an Imperial or in a Provincial Legislature, they may (in
their Lordships' judgment) be well exercised, either absolutely or
conditionally. Legislation, conditional on the use of particular
powers, or on the exercise of a limited discretion, entrusted by the
Legislature to persons in whom it places confidence, is no uncommon
thing ; and, in many circumstances, it may be highly convenient."
The distinctions here pointed out are very intelligible. Naming
an official to fix the time for the operation of a law to commence, or

(1) 3 App. CaB. 889.

~^i

PRIVY COUNCIL.

18!)

i:i

of License
nd limita-

Ys: "Ttie
Act of the
course, do
irera. But,
n agent or
ntende'l to
a'.ne nature,

itnre, which
in districts,
Hig'i Court
red upon the
whe^ier the
strct. This
tion of legis-

,u*enaut-Gov-

ce ; and also

that or any

district any

time t ' time

le other tcr-

it as to place,
has been to
le conditions
ute. Where
ar subjects,
[they may (in
ibsolutely or

if particular
[ustod by the

lo uncommon

convenient.

.le. Naming
•mmcnce, or

the area over which it was to extend, must be a very different 1883

matter from appointing an official to declare what shall be the law, J!""^

. , , ,, , .,,..,. ~ Hodge

and what punishment shall be appointed for its infraction. Oon- r.

ditional legislation and a delegation of power to another body must TheQceen.

always be very distinguishable. Q-B., Ontario.

Assuming that the Legislature can themselves impose these re- Hagarty. C.J.

strictions, and annex to their violations these penalties, can they ^"~

delegate their power, exerciseable in their discretion, to tli3 discretion

of any person or number of persons outside their assembly ?

In the words of the B. N. A. Act, has this defendant, by disobey-
ing the resolutions of the License ^ioard, broken " any law of the
Province /" He has offended against the regulations by the board
established for the city of Toronto. The eight or nine cities of
Ontario may thus have as many widely differing loc?.l regulations as
to taverns. The Legislature has not enacted any of them, but has
merely authorized each board in its discretion to make them.

It seems very difficult, in our judgment, to hold that the Cri>-
fuderation Act gives any such power of delegating authority, first,
of cri ating a quasi offence, and then of punishing it by fine or im-
prisonment. We think it is a power that must be exercised by the
Legislature alone.

In all these questions of ultra vires we consider it our wisest
course not to widen the discussion by considerations not necessarily
[152] involved in the decision of the point in controversy.

Wo, therefore, enter into no general consideration of the powers of
the Legislature to legislate on this subject, but assuiuing their right
so to do, we feel constrained to hold that they cannot devolve or dele-
gate their powers to the discretion of a local board of commissioners.

We think the defendant has the right to say that he has n t
ofl'enileil against "any law of th. Trovince," and that the convictions
cannot be supported.

We perceive that, by the Act of last Session, special power is given
to the Attorney-General to appeal, if he think proptr, against our
decision.

Ahmouk and Cameron, JJ., conci'.rred.

[See Powell v. Apollo Cumllc Com-
innii, 10 App. Ctv8. 282, where Sir
Robert P. Collier, delivering the
judgment of the Judicial Committee
iif the Privy Council, after comment-
ing tm /fcj;. V. Burah, 3 App. Gas.
HX'J, and Hodge v. The Queen, Bupra,
says (p. 290) : " These two cases have

put an end to a doctrine which ap-
pears at one time to have had some
currency, that a Colonial Legislature
is a delegate of the Imperial Legis-
lature. It is a Legislature restricted
in the area of its powers, but within
that area unrestricted, and not act-
ing as an agent or a delegate."]

1
i

ffi:uMS

s^2i>«i

190

PRIVY COUNCIL.

The Attorney-General for Quebec Appellant;

AND

m w.

■ ! i

Walter Reed Respondent.

On appeal from the Supreme Court of Ca^iada.

[Eeported 10 App. Cas. 141.]

B.N. A. Act, 1867, ss. 65, 1)2, snb-ss. 2, 14r— Quebec Act, 43 d- 44, Vict.
c. 9 — Powers of Provincial Legislature — Diity upon Exhibits.

Held, That Quebec Act (43 it 44 Vict. c. 9) which imposed a duty
of ten cents upon every exhibit filed in Court in any action
depending therein, is ultra vires of the Provincial Legislature.

Appeal from an order of the Supreme Court (June 18,
1883), (1) reversing a judgment of the Court of Queen's
Bench of Quebec (Nov. 24, 1882), (2) and restoring a judg-
ment of the Superior Court of Quebec, district of Mon-
treal (March 10, 1882). (3)

The order declared that a certain duty of ten cents
imposed by an Act of the Quebec Legislature, (43 & 44
Vict. c. 9) on every exhibit produced in Court in any
action depending therein was not warranted by law, the
Act imposing it being ultra vires of the Provincial Legis-
lature.

The question arose in an action dej tending in the said
Superior Court, wherein the respondent tendered a pro-
missory note as an exhibit, and the prothonotary refused

Present : The Lord CHANCKLLon (Earl of Selbgrnk), Lord FitzGerald,
Sir Montague E. Smith, and Sir Robkrt P. Collier.

(1) 8 Can. P. C. R. 408 ; ;w«<, p. 190. (2) Pott, p. 212.

(3) Post, p. 226.

PRIVY COUNCIL.

cents
[3&44.
lin any
iw, the
Logis-

\e said
a pro-
refused

212.

to receive and file it, unless there were affixed to it a law
stamp of ten cents in payment of the duty imposed by
the said Act. A rule was thereupon obtained by the
respondent and served by order of the Court upon the
appellant to shew cause why the exhibit should not be
received without a stamp ; with the result as stated above.
The judgment of the Supreme Court was pronounced by a
majority of the Judges (Ritchie, C. J., Fournier, Henry and
Gwynne, JJ., Strong and Taschereau, JJ., dissenting).

Davey, Q.C., and Glohensky, Q.C. (of the Canadian bar),
[142] Pollard with them, for the appellant, contended
that the Act in question was within the competence of
^he Provincial Legislature. It was passed several years
70, duly received the assent prescribed by the imperial
Act in lieu of the former royal assent to Acts of the
former Province, was never disallowed, and was acted
upon. The duty imposed was not a fresh one, but was
identical with the duty of ten cents upon exhibits imposed
by the Act 39 Vict. c. 8, which was only repealed and re-
enacted by the Act in question. Its validity appears
from the following considerations : (a) as imposing " direct
taxation " in pursuance of the express power given to the
Provincial Legislatures by the B. N. A. Act, 1867, sect. 92,
sub-s. 2 ; (b) as relating to the administration of justice
in the Provinces, under sub-s. 14 of the same section,
within the meaning of the words there employed ; (c) as
being under the provisions of sects. 65 and 129, an altera-
tion of a law in force in the former Province of Canada
at the union of the Provinces into the Dominion by the
said Act of 1867. In reference to this last reason for the
validity of the Act, it was contended that up to and at
the union Con. Stat, of Lower Canada, c. 109, s. 32, gave
power to the Governor to impose any duty on exhibits in
any Court in Lower Canada by Order in Council ; that

1883

Attorney-
General
OF Quebec

Peed.
Stateme.:t.

»! '

'■^M

-M

192

PRIVY COUNCIL.

1883

Attorney-
General
OK Quebec

Reed.

Argument.

III

sect. 65 of the Act of 1867 (compare also sect. 129) made
such power exerciseable by the Lieutenant-Governor of
the Province, subject to the Legislature of the Province ;
that therefore Quebec Act, 39 Vict. c. 8, sects. 1 and 2,
was within the competence of the Provincial Legislature ;
and that consequently the Act in question as a mere
amendment or re-enactment of 39 Vict. c. 8, was equally
within that competence.

The respondent did not appear.

The judgment of their Lordships was delivered by

Earl of Selborne, L.C. : —

Their Lordships have considered the argument which
they have heard, and they have come to the conclusion
that the judgment appealed from must be affirmed.

The points to be considered are three : first of all, can
[143] this charge upon exhibits used in the courts of justice
of the Province be justified under the 2nd sub-sect, of
clause 92 of the B. N. A. Act ? Is it a case of direct tax-
ation within the Province " in order to the raising of a
revenue for provincial purposes ?" What is the meaning
of the words "direct taxation ?"

Now it seems to their Lordships that those words must
be understood with some reference to the common under-
standing of them which prevailed among those who liad
treated, more or less scientifically, such «ubjects before the
Act was passed. Among those writers we find some diver-
gence of view. The view of Mill and those who agree
with him is less unfavourable to the appellant's arguments
than the other view, that of Mr. McCulloch and M. Littre.
It is, that you are to look to the ultimate incidence of the
taxation, as compared with the moment of time at which
it is to be paid; that a direct tax is —in the Avords
which are printed here from Mr. Mill's book on political

PRIVY COUNCIL.

193

Is must
lunder-
Iho had
)re the
diver-
agree
mients
iLittre.
, of the
1 which
1 words
)litieal

economy — "one which is demanded from the very persons
who it is intended or desired should pay it." And then the
converse definition of indirect taxes is, " those which are
demanded from one person in the expectation and
intention that he shall indemnify him.self at the expense
of another."

Well now, taking the first part of that definition, can
it be said that a tax of this nature, a stamp duty in the
nature of a fee payable upon a step of a proceeding in the
administration of justice, is one which is demanded
from the very persons who it is intended or desired should
pay it ? It must be paid in the course of the legal proceed-
ing, whether that is of a friendly or of a litigious nature.
It must, unless in the case of the last and final proceed-
ing after judgment, be paid when the ultimate termin-
ation of those proceedings is uncertain ; and from the very
nature of such proceedings until they terminate, as a rule,
and speaking generally, the ultimate incidence of sn.ch a
payment cannot be ascertained. In many proceedings of
a friendly character the person who pays it may be a
trustee, an administrator, a person who will have to be
indemnified by somebody else afterwards. In most proceed-
ings of a contentious character the person who pays it
is a litigant expecting or hoping for success in the suit ;
[144] and, whether he or his adversary will have to pay
it in the end, must depend upon the ultimate termination
of the controversy between them. The Legislature, in
imposing the tax, cannot have in contemplation, one way
or the other, the ultimate determination of the suit, or
the final incidence of the burden, whether upon the person
who had to pay it at the moment when it was exigible, or
upon any one else. Therefore it cannot be a tax demand-
ed " from the very persons who it intended or desired
should pay it," for in truth that is a matter of absolute

indifference to the intention of the Legislature. And, on
18

1883

Attorney-

General

OF Quebec

Reed.
Judgment.

194.

PRIVY COUNCIL.

1883

Attornkt-

General

of qukleo

Beed.
Judgment.

.^1

i
1

■

ii; 'i

liii

i !

|i|M:

the other hand, so far as relates to the knowledge which
it is possible to have in j, general way of the position of
things at such a moment of time, it may be assumed that
the person who pays it is in the expectation and intention
that he may be indemnified, and the law which exacts it
cannot assume that that expectation and intention may
not be realized. As in all other cases of indirect taxation,
in particular instances, by particular bargains and arrange-
ments of individuals, that which is the generally presum-
able incidence ma3'^ be altered. An importer may be him-
self a consumer. Where a stamp duty upon transactions
of purchase and sale is payable, there may be special
arrangements between the parties determining who shall
bear it. The question whether it is a direct or an indirect
tax cannot depend upon those special events which may
vary in particular cases ; but the best general rule is to
look to the time of payment, and if at the time the ultimate
incidence is uncertain, then, as it appears to their Lord-
ships, it cannot, in this view, be called direct taxation
within the meaning of the 2!nd sect, of the 92nd clause of
the Act in question, still less can it be called so, if the
other view, that of Mr. McCulloch, is correct.

That point, which is the main point, and was felt to be
so by Mr. Davey in his very able and clear argument,
being disposed of, the next question, upon the terms of
the same section of the same Act, is that which arises
under sub-s. 14. One of the things which are to bo
within the powers of the Provincial Legislatures — within
their exclusive powers — is the administration of justice
in the Province, including the constitution, maintenance,
and organization of Provincial Courts, and includinf; the
procedure in civil matters in the Courts. Now it is not
[145] necessary for their Lordships to determine whether,
.f a special fund had been created by a Provincial Act
for the maintenance of the administration of Justice in

PRIVY COUNCIL.

195

the Provincial Coujrts, raised for that purpose, appro-
priated to that purpose and not available as general
revenue for general Provincial purposes, in that case
the limitation to direct taxation would still have been
applicable. That may be an important question which
will be considered in any case in which it may arise ;
but it does not arise in this case. This Act does not
relate to the administration of justice in the Province ;
it does not .provide in any way, directly or indirectly, for
the maintenance of the Provincial Courts ; it does not
purport to be made under that power, or for the perform-
ance of that duty. The subject of taxation, indeed, is a
matter of procedure in the Provincial Courts, but that is
all. The fund to be raised by that taxation is carried to
the purposes mentioned in the 2nd sub-section ; it is made
part of the general consolidated revenue of the Province.
It, therefore, is precisely within the words " taxation in
order to the raising of a revenue for Provincial purposes."
If it should greatly exceed the cost of the administration
of justice, still it is to be raised and applied to general
Provincial purposes, and it is not more specially appli-
cable for the administration of justice than any other
part of the general Provincial revenue.

Their Lordships, therefore, think that it cannot be
justified under the 14th sub-section.

With regard to the third argument, which was founded
upon the 65th section of the Act, it was one not easy to
follow, but their Lordships are clearly of opinion that it
cannot prevail. The 65th section preserves the pre-
existing powers of the Governors or Lieutenant-Governors
in Council, to do certain things not there specified. That,
however, was subject to a power of abolition or alteration
by the respective Legislatures of Ontario and Quebec
with the exception, of course, of what depended on Im-
perial Legislation. Whatever powei's of that kind existed,.

1883

Attoenkt-

Genkbal

of qubbko

Keed.
Judgment.

'-i- 1

Wil

i'''

! !

■\

li
1

'; '1
1 1

1883

Attorniy-

General

OF Quebec

Reed.

Judgment.

196

PRIVY COUNCIL,

the Act with which their Lordships have to deal neither
abolishes nor alters them. It does not refer to them in
any manner whatever. It is said that, among those
powers there was a power, not taken away, to lay taxes
of this very kind upon legal proceedings in the Courts,
[146] not for the general revenue purposes of the Pro-
vince, but for the purpose of forming a special fund, called
" the Building and Jury fund," which was appropriated
for purposes connected with the administration of justice.
What has been done here is quite a different thing. It is
not by the authority of the Lieutenant-Governor in
Council. It is not in aid of the Building and Jury fund.
It is a Legislative Act without any reference whatever to
those powers if they still exist, quite collateral to them ;
and, if they still exist, and if it exists itself, capable of
being exercised concurrently with them ; to tax for the
general purposes of the Province, and in aid of the general
revenue, these legal proceedings.

It appears to their Lordships that, unless it can be
justified under the 92nd section of the B. N. A. Act, it
cannot be justified under the 65th.

Their Lordships must, therefore, humbly advise Her
Majesty to dismiss this appeal.

Jri»GMEXT,s IN Supreme Court of Canada.

lii I.I

[licporUd 8 Can. S. C. R 408.]

Ritchie, C. J. : —

[415] In 1875, the Legislature of the Province of Quebec, by the
Act 3d Vict. c. 8, for the first time imposed a tax of ten cents on
the filing of every exhibit in a cause. This tax, payable by means
of stamps, was to form part of the consolidated revenue of tlie
Province of Quebec (sects. 1 and 2).

This Act was repealed by the 43rd & 44th Vict. c. 9, and the
same tax of ten cents on filing of exhibits was re-imposed (sect. 9).

PRIVY COUNCIL.

197

Attorney-
General

OF l^UEBKO

Reed.

Sup. C,
Canada.

Althoui^h this Act does n t expressly declare that this tax shall jggy
form part of the consolidated revenue of the Province, as the
repealed statute (39th Vict. c. 8) did, yet it enacts that all the
duties therein mentioned shall be deemed payable to the Crown
(sect. 3, sub-sect. 2), and they necessarily fall under the provision
of 31st Vict. c. 9, sect. 3, Avhich declares that all revenue wbatcvtv
over which the Legislature of the Province has power of appropria-
tion, shall form one consolidated fund to be appropriated for the Ritchie, C. J
public service of the Province.

This special tax has, therefore, been imposed since the B. N. A.
[416] Act by the Legislature of the Province of Quebec, to form
part of the cons ili'lated revenue of the Province. By the B. N. A.
Act, 1867, sect. 92, sub-sect. 2, the Legislature of each Province is
authorized to raise a revenue for Provincial purposes by means of
direct taxation, and from the other sources, such as those mentioned
in sub-sects. 5, 10 and 15, which have no application to the present
case.

To the Dominion Parliament is given the right to raise money by
any mode or system of taxation (sect. 91, sub-sect. 3). This right
is exclusive when not coming within the classes of subjects assigned
to the Provincial Legislatures, and as the Legislatures of the Pro-
vinces are only authorized to raise a revenue by direct taxation and
the other sources of revenue already mentioned, it follows thut the
Parliament of Canada has the exclusive right to raise a revenue by
means of indirect taxes, and the Legislatures of the Provinces have
no such right.

The terms of the Act seem clear on this point, and the Judicial
Committee of the Privy Council liave so interpreted them by
deciding in the case of the Attorney-General for Quebec v. The Q^ieen
Insurance Company (1), that the tax imposed on insurance comp iuies
by the Act 39th Vict. c. 7, of the Legislature of the Province of
Quebec, was ultra vires, as not being a direct tax.

The 43rd & 44th Vict. c. 9, is cleai ly a tax Act to raise a revenue
for Provincial purposes, and, therefore, the only question is— is this
a direct or indirect tax ?

Stamp duties were introduced into England in 1671 by a statute
entitled "An Act for laying impositions on proceedings at law,"
for nine years — continued for three years, then expired — revived in
1693, and have always been considered indirect taxes.

(1) 3 App. Caa. 1090 ; ante, vol. 1., p. 117.

1 ''U

' "9

flW"^'

198

PRIV\ COUNCIL.

1888

Attornet-

General

OF Quebec

Reed.

Sup. C,
Canada.

Ritchie, C. J.

This, in my opinion, is clearly an indirect tax levied for no specific
purpose, but forms part of the consolidated revenue of the Province
[417] for general purpose The judgments of Mackay, J., and
Dorion, C. J., are, to my mind, conclusive.

Had this been merely an easy means adopted for the purpose of
collecting a fee of office for work actually performed, I might, as at
present advised, be disposed to look on the matter in a very different
light from what it now strikes me, but this is not a fee or reward
for labour ; but it is a tax for raising a revenue, pure and simple,
and has no more to do with the officer who files the paper or with
the maintenance of the administration of justice than any other tax
or source of revenue of which the consolidated revenue of the
Piovince is composed for the support of the Government, and to
promote the general interests of the people.

I am of opinion the appeal should be allowed, and the judgment
of the Superior Court affirmed.

Strong, J. : —

The question presented for our decision by thin appeal requires
us to determine whether tlie 9th section of the Act 43 & 44 Vict,
c. 9, was within the powers of the Legislature of the Province of
Quebec. That section is in these words :

" There shall be imposed, levied and collected a duty of ten cents
on every writ of summons issued out of any County Circuit Court,
Magistrate's Court, or Commissioner's Court in the Province, and ii
duty of ten cents shall be imposed, levied and collected on each
promissory note, receipt, bill of particulars, and exhibit whatsoever,
produced and filed before the Superior Court, the Circuit Court, or
the Magfistrate's Court, such duties payable in stamps."

A former statute, the 39th Vict. c. 8, had imposed a similar tax of
ten cents for every exhibit filed in a cause. This Act was repealed,
and its provisions re-enacted and consolidated with other like pro-
visions by the statute now in question, 43 & 44 Vict. c. 9.

It has been argued that this was a direct tax which the Legislature
[418] had power to impose under sub-sect. 2 of sect. 92 of the B.
N. A. Act. I am, however, clearly of opinion that this contention
must fail. Taxes on legal proceedings are invariably classed by
scientific writers on taxation and political economy as indirect, and
even though such a tax may not be indirect in the sense that the
burthen of it is ultimately to be borne by a person other than he
who originally pays it, it is clearly so, according to the well-founde'l

PRIVY COUNCIL.

199

) apeci&c

Province

J., and

iirpose of
;ht, aa at
different
)r reward
,d simple,
jr or with
other tax
ue of the
nt, and to

judgment

al requires
& 44 Vict.
*rovince of

I ten cents
luit Court,
jnce, and a
Id on each
hatsoever,
Court, or

lilar tax of
repealed,
like pro-
legislature
lof the B.
lontention
llassed by
[irect, and
that the
\r than he
l-founde'l

definition of Mr. McCuUoch (1), who thus disthiguishes direct and
indirect taxes :

•' A tax (he says) may be either direct or indirect ; it is said to be
direct when it is taken directly from property or income, and indirect
when it is taken from them by making individuals pay for liberty
to use certain articles or exercise certain privileges."

Subjected to this test, which has the sanction of a great number
of similar authorities, it is apparent that the tax in question must
bo classed amongst indirect taxes.

The decision of the Privy Council in the case of the Attomey-
Oeneral for Quebec v. The Queen Ins\irance Company (2) is also
conclusively in favour of this view.

It is there said that there is nothing in the B. N. A. Act pro-
hibiting Provincial Legislatures from imposing indirect taxes ; that
all that sub-sect. 2 of sect. 92 does, is to confer on the Provincial
Legislatures exclusive powers to impose direct taxes, and that it
does not follow that the Legislatures may not have implied powers
of indirect taxation.

To say that the Provincial Legislatures have power of indirect
taxation, either generally, as an inherent power without reference
to any authority derived from the B, N. A. Act, or as implied from
the powers expressly conferred upon them, is to assume that they
have, to some extent, concurrent powers with Parliament, and that
[419] their powers of legislation are not limited by the subjects
particularly enumerated in sect. 92. In other words, that, whilst
sect. 92 gives certain exclusive powers, it does not restrict Provincial
Legislatures to those subjects. This important question was referred
to. but not decided, in the case of L' Union St. Jacques v. Belisle (3),
in the Privy Council. I do not think, however, we are called upon
to consider it for the purposes of this appeal, for assuming that no
such power exists, and that the legislation now impugned cannot be
referred either to any concurrent authority to impose indirect taxes,
or to a power of taxing incidental to the express authority to
legislate on the subjects comprised in sub-sects. 14 and 16 of sect.
92, it appears to me that, under other provisions of the B. N. A.
Act, and apart altogether from those contained in sect. 92, the
imposition of this stamp duty on exhibits was not tdtra vires.

By cap. 109 of the Consolidated Statutes of Lower Canada, which

(1) McCuUoch on Taxation, p. 1. (2) 3 App. Gas. 1090 ; ante, vol. 1., p. 117.
(3) L. R. 6 P. C. 31 ; ante, vol. 1., p. 63.

1883

Attornkt-

Gknbral

OP Quebec

Rred.

Sup. C,
Canada.

Strong, J.

'■■'■'I

-'Mil

^ ::|

m I

■am

■r

fH"

200

PRIVY COUNCIL.

1883

Attornet-

Genkhal

OF Quebec

Reed.

Sup. C,
Canada.

Strong, J.

I \

was in force at the time the B. N. A. Act, 1807, was passed nnd
came into operation, the Governor in Council of the late Province
of Canada wa8 authorized to impose taxes or duties upuii legal pro-
ceedings had in any of the courts of Lower Canada, and thene taxes
were to form part of the building and jury fund of the district in
which they were collected. Subsequently by an Act passed in 1864
(27 Sc 28 Vict. c. 5, s. 4) it was enacted that these taxes or duties
should be paid by means of stamps.

By the C5th sect of the B. N. A. Act, 1867, it was enacted that —

" All powers, authorities and functions which under any Act of
the Parliament of Great Britain or of the Parliament of the United
Kingdom of Great Britain and Ireland or, of the Legislature of
Upper Canada, Lower Canada, or Canada, were or are before or at
the union vested in or exerciseable by the respective Governors or
Lieutenant-Governors of those Provinces, with the advice, or with
the advice and consent, of the respective executive councils
[420] thereof, or in conjunction with those Councils, or with any
number of members thereof, or by those Governors or Lieutenant-
Governors individually, shall, as far as the same are capable of being
exercised after the union in relation to the Government of Ontario
and Quebec respectively, bo vested in and shall and may be exer-
cised by the Lieutenant-Governor of Ontario and Quebec respect-
ively, with the advice or with the advice and consent of or in con-
junction with the respective executive councils, or any members
thereof, or by the Lieutenant-Governor individually as the case
requires, subject nevertheless (except with respect to such as exist
under Acts of the Parliament of Great Britain or of the Parliament
of the United Kingdom of Great Britain and Ireland) to be abolished
or altered by the respective Legislatures of Ontario and Quebec."

By the 126th section of the B. N. A. Act, it was also provided
that:

" Such portions of the duties and revenues over which the respec-
tive Legislatures of Canada, Nova Scoti' . and New Brunswick, had
before the union power of appropriativ>n, as are by this Act reserved
to the respective Governments or Legislatures of the Provinces, and
all duties and revenues raised by them in accordance with the special
powers conferred upon them by this Act, shall in each Province
form one consolidated revenue fund to be appropriated for the
public service of the Province."

It is clear, therefore, that by force of the 66th section, the power
which by Con. Stats, of Lower Canada, c. 109, was vested in the

1 respec-

[ck, had

leserved

^es, and

I special
Irovince

tor the

power
in the

PRIVY COUNCIL.

201

1883

Attorney-
Gen Kn A L
OP Quebec

Reed.

Sup. C,
Canada.

Governor in Council of the former Province of Canada, of imposing
taxes and duties on legal proceedings, passed to and vested in the
Lieutenani-Governor in Council of the Province of Quebec. Tliere
cannot be a question as to this ; it was originally a power exclusively
concerning and relating to that portion of dinada which constitute I
the new Province of Quebec, ami c> le the exercise of which did not
involve any interference with any other portion of the D' 'minion, or
any extension of authority beyond the territorial limits of Quebec, strong, J.
and therofi>re it was, according to the most strict and narrow con-
struction which could be given to the language of the 65th section,
[421] a power capable of being exercised after the union in rela'-on
to the Government of Quebec. It follows, that prior to and at tlie
time of the passing of the Provincial Act, 39 Vict. c. 8, the Lieut-
enant-Governor in Council of the Province of Quebec, had the
power of imposiug a tax or duty upon each exhibit filed in the courts
pursuant to the authority conferred by Con. Stats, of Lower Canada,
c. 109.

Then, as the produce of such a tax would be in the words of sec-
tion 125, a duty or revenue reserved by the B. N. A, Act to the
Government of the Province of Quebec, it would, under the express
provision of the last mentioned section, form part of the consolida-
ted revenue fund of that Province, It was, therefore, up to 1875,
when the 39 Vict., c. 8, was passed, quite within the competence of
the Lieutenant-Governor in Council, not merely to impose this tax
or duty on the filing of exhibits, but further to provide that the pro-
ceeds of the tax, instead of being paid as before confederation, into
the jury and building fund of each district, should be paid into th^
consolidated revenue fund of the Province ; indeed, it was not
merely within the power of the Governor in Council to order the
moneys so collected to be thus disposed of, but they were by law
bound to make such a disposition of them, since the tax would come
under the denomination of a tax or duty reserved to the Govern-
ment of the Province, and was also a revenue over which the Legis-
lature of the Province of Canada, before the union, had a power of
appropriation ; for there can be no doubt or question that although
the building and jury fund was kept apart from the consolidated
revenue fund of the Province of Canada, nnd was to some extent a
It cal fund, it was nevertheless a fund produced by taxes payable to
the Crown, over which the Legislature of the old Province of Canada
[422] had absolute powers of control and disposition. It can, there-
fore, be demonstrated that the Lieutenant-Governor in Council

(;)

■:i>

:i:*;

I'N

202

PRIVY COUNCIL.

1883

Attobnet-

Gknbbal

of qukbec

Reed.

Sup. C,
Canada.

Strong, J.

Wil'

~l,l

couid, undar the Consolidated Statutes of Lower Canada, c. 109,
have done pi _visely what the Legislature did by the Act of 1876'
(39 Vict. c. 8,) have imposed a tax of ten cents on every exhibit filed
in a cause, such tax to be payable by stamps, and the proceeds of
the sale of the stamps to be paid into the consolidated revenue of
the Province.

Then, can it be said that it was any usurpation on the part of the
Provincial Legislature when they a.ssume to themselves this same
power which the Provincial Executive could, under the express
provisions of the Confederation Act, have exercised without further
legislative authority ? The answer to this is also to be found in the
very words of the 05th section of the B. N. A. Act, which expressly
provides that the powers of that section transferred to the Provincial
Governments shall be "subject to be abolished or altered by the
respective Legislatures of Ontario and Quebec." That the transfer
from the executive to the legislative department of the Government,
of the authority which had been in the manner already indicated
reserved to the Lieu*;enant-Governor in Council, was an alteration
within the meaning of the authority given to the Legislature to alter
powers thus vested, is surely too plain to require or even to be sus-
ceptib'e of argument ; having the right to abolish the power alto-
gether, it must have been competent to the Legislature, under the
lesser authority given to alter, to assume the exercise of it them-
selves, and thus to provide that these functions of legislation and
taxation which, in the oM Province of Canada had been delegated
to the Governor in Council, should in the future be attributed to and
exercised by the appropriate constitutional depository of such power,
[423] the Legislature itself. Under the express authority to alter,
contained in the 65th sect., and also under sub-sect. 1 of sect. 92,
authorizing constitutional changes, the Legislature could therefore
havt! passed an Act expressly and formally revoking the authority
given to the Governor in Council by Consolidated Statutes of Lower
Canada, c. 109, and providing that thereafter, the taxes authori/ed
by that st8':jte to be imposed by Order in Council, should only be
levied under the authority of the Legislature itself. And if it could
have thus expressly revoked or transferred the power in question, it
could also do so by implication as well ; and this it did, when by 39
Vict. c. 8. and the subsequent statute 43 & 44 Vict. c. 9, by
which the provisions of the first mentioned Act are renewed and con-
solidated, it imposed i>he tax now called in question.

The foregoing is in accordance with the view taken in the Court

PRIVY COUNCII

203

ko Court

of Queen's Bench by Mr. Justice Cross, in whose judgment I agree
in every respect.

I am therefore of opinion that the 9th section of the statute 43 &
44 "Vict. c. 9, was not vUra vires of the Legislature of the Province
of Quebec, and that this appeal must consec^uently be dismissed
with costs.

FOUENTBB, J. : —

This question has been so fully treated by Sir A. A. Dorion that
I do not see what I could add. In my opinion this is an indirect
tax, and therefore the Local Legislature had no right to impose- it.
I also agree with the reasons given by the Chief Justice of this
Court

Henky, J. : —

Under the B. N. A. Act, the Local Legislatures were not
auth< >rized to impose any indirect tax, and it is for us to consider
now whether this Act (43 & 44 Vict. c. 9) and this Act only (for
that is the only one before ns) was within the lowers of the Quebec
Legislature since 1867. The first question is — is it a direct or an
indirect tax ? I have no hesitation in saying that it is an indirect
[424] tax. That tax was not for the payment of juries or other
purposes connected with the court, but it was to be paid into the
consolidated revenue fund of the Province. Now, carrying out the
principle that is involved, if that is within the powers of the Local
Legislature, where is the limit to be ? We might j^o on to any
extent. The Judicial Committee of Ihe Priv^- 1 junci). have decided
in Attorney-General for Quebec v. Queen Ins. Co. (1), that they could
not impose a duty by stamps, because i^ was an indirect tax. Thi.s
court decided that the Legislatar." of Oatario had no right to levy
an indirect tax on brewers, because it ie taken indirectly from the
pockets of the consumers. (2) Now, this tax is to bo taken out of the
pockets of suitors and placed in the general revenue of the Province.
That is to all intents and purposes an indirect tax, and therefore I
think the Legislature exceeded its powers. As to whothev the
Legislature had that power or not, and many of the m.<,lter8 argued,
we have already had under the consideration of this court, and the
decisions we have given on this very question, rendc )'t unnecerts;»rj-

1883

Attobnit-

Genkral

or Quebec

Beed.

Sup. C,
Canada.

Strong, J.

(1) 3 App. Cos. 1090 ; ante vol. 1., p. 117.
(2) [3ee Severn v. The Queen, 2 Can. S. C. R. 70 ; ante, vol.

p. 414 ]

204

PRIVY COUNCIL.

1:1 ' '

• M

, I

1883

Attobnev-

Genbbal

of qcebeo

Reed.

Sup. C,
Canada.

Henry, J.

that I should say much. I think the appeal ought to be allowed,
and the judgment below reversed.

Taschereau, J. : —

I am of opinion, with the Superior Court of Montreal, and the
learned Chief Justice of the Court of Queen's Bench, tlat the tax in
(juestion here is not a direct ta.x, and that it is by direct taxation
only that the Provincial Legislatures can raise a revenue for Pro-
vincial purposes. I am also of opinion that the said tax is what the
statute itself calls it, really a tax or duty, and not a fee of office
under c. 9.3 of the Consolidated Statutes L. C. The fees of the
officers of the court have not been increased, and were not intended
[425] to be increased by the Act impugned ; they do not collect it,
neither does it inure to their benefit in any way. On these three
points, we are, I believe, unanimous. I am, however, of opinion
that the section of the Act 43 & 44 Vict. c. 9, imposing this duty of
ten cents on each exhibit, is not ultra vires, and this upon the
following ground.

Before confederation the Governor in Council could clearly, under
sect. 32, c. 109, of the Con. Sta' . L. C, have imposed such a tax or
duty, payable in stamps by the Act of 18G4. Under sects. 65 and
129 of the B. N. A. Act, this power was continued to the Lieutenant-
Governor in Council, and under these two sections the exclusive
power to repeal or alter the said provisions of the said chapter of
the Consolidated Statutes, or of the said Act of 18G4, was vested in
the Provincial Legislature. The Provincial Legislature, conse-
quently, must have, and alone have, complete control over the
building and jury fund created under the said chanter of thf Con-
solidaed Statutes, inclu'Hng the power to abolish it, and to enact
that it Bhall form part of the consolidated revenue. Before con-
federation, under the union of ^he two Canadas, the i,..T'sol:dated
fund was, of course, a fund common to both of these Provinces, so
that, in order t> prevent local revenues raised for special local
expenses, expenses personal to one Province, from inuring to the
benefit of the other Province, it was necessary to create special funds
of the kind in question. Each Province levied such taxes for itself
alone, and not at all for the benefit of the other, nor, in other words,
for the consolidated general revenue fund, which belonged to the
two Provinces jointly. But, since confederation, this reason does
not exist. The consolidated fund of each Province belongs, in s
integrity, to that Province and is under exclusive Provincial control.

PKIVY COUNCIL.

205

1883

Attornkt-

Gkneral

OF Quebec

Reed.

Sup. C,
Canada.

And if the Province of Quebec has, either expressly or impliedly,
by the provisions of the 31 Vict. c. 9, s. 8, or by those of the
[426] particular enactment now impugned, abolished the building
and jury fund, and thrown the proceeds of it into its consolidated
revenue fund, it has, it seems to me, dealt with nothing but what
is under its legislative control, or done nothing but what it had
full power to do under the B. N. A. Act. It has imposed an
additional tax, it is true, but has it not the power — and the exclusive Taschereau J

power — to do so (not for general Provincial purposes, but for the

same purposes as those for vhich the said provisions of the Con-
solidated Statutes were enacted) and this, as a consequence of the
power to alter or amend them. It might be that, if in a proper
case, it was alleged and proved that, for the whole Province, the
expenses of the administration of justice are more than covered by
the duties imposed on the law proceedings, and, if it was demon-
strated that the Legislature, under pretence of providing for these
expenses, has attempted, in evasion of the provisions of the B. N.
A. Act, to raise a revenue for general Provincial purposes by indirect
taxation on these law proceedings, the courts would then interfere
and declare that these Legislatures cannot in violation of the law so
enlarge the powers conferred upon them. But there is no issue of
that kind raised here. What Mr. Honey, the prothonotary of
Montreal, examined as a witness in this case, says on this subject,
does not relate to all the expenses connected with the Montneal
Court House, and, moreover, has no application to the Province at
larj,'e, in which it is notorious that the deficit in the revenues con-
nected with the administration of justice is very large. Tlien, it
seems to me, the difference betwem the building and jury fund and
the consolidated revenue is merely one of book-keeping. What has
been paid to the building and jury fund before confederation, under
[427] the Act of 1864, was deemed payable to the Crown, though for
a special purpose only, and what was due to it was recoverable by the
Crown. And that this tax of ten ceuts is ultra vires, because it is
also, by the Act imposing it, declared to be deemed payable to the
Crown, is what I cannot see. On the contrary, it seems to me clear
that the Provincial Legislature alone had the power to pass an
enactment like the one impugned, and to enact, as a matter of pro-
cedure, as it did by the same statute, that no exhibit shall be
received in the courts of justice if not bearing this ten cent stamp.
The Dominion Government has certainly not that power. So, if the
Provincial Government did not have it, it would follow that, since

» >!' tV

1 1

206

PRIVY COUNCIL.

Attornky-

Gbnbral

of qcbbbc

Reed.

Sup. C,
Canada.

I '

lllj^j

1883 confederation there would be no power anywhere to provide for

the expenses of the administration of justice in the Province of
Quebec, on the system and basis existing before confederation. It
would follow that if a new procedure was introduced as, for instance,
has been done by the iutroduction of the writ of injunction in 1878,
the Province would have no power to impose any duty on that par-
ticular proceeding or act of procedure, or that if a new court was
Taschereau, J. created, as was, for instance, the District Magistrates Court, all the
proceedings in that court would be entirely free from all such tax.

These Acts of the Consolidated Statutes anU of 1864 formed part
of what was, at confederation, known as the Acts concerning the
administration of justice in the Province and the procedure in civil
matters in the courts ol le Provi'^^e, and as such they have been,
by the B.N. A. Act, left •-• lie yxclusive control of the Provin-

cial Legislature.

Tiie Act 31 Vict. c. 2, imposed for the building and jury fund
before confederation, repealed by the Act now impugned, re-enacted
that all such duties and taxes were to be deemed ps>yaMe to the
[428] Crown. Then before confederation, the Act of 1864, as to these
very duties, is entitled : *' An Act for the collection, by means of
stamps of fees of office, dues and duties payable to the Crown " ; and
it-! preamble says : " Whereas it is expedient that all fees and charges
payable to the Crown." By section 9 thereof, " it specially enacted
that all the fees, dues, duties, taxes and charges payable under the
said Acts and parts of Acts (including those for the building antl
jury fund) shall be considered to be fees, dues, duties, taxes and
charges payable to the Crown for the purposes of this Act. " Is it
not clear that all these duties, since they have been first enacted,
have always been considered to be deemed payable to the Crown?
They are received and paid to certain officers, but these officers
receive it for the Crown ; «rhat is so paid them is paid to the Crown.

And the argument, that because 31 Vict. c. 9, s. 3, enacts that all
revenues subject to Provincial control are to form part of the con-
solidated fund, this new tax must also fall in that fund, seems to
me untenable. Ever since the 9 Vict. c. 114, confirmed by 10-11
Vict. c. 71, of the Imperial Statutes (cap. 14 of the Consolidated
Statutes of Canada) it had been likewise for the old Provinces
enacted that all revenues subject to Provincial control should form
a consolidated revenue fund. Yet this did not and could not pre-
vent the Legislature of Canada (before confederation) from creating
for the Pro\ince of Quebec the building and jury fund and its reve-

PRIVY COUNCIL.

207

Attornkt-

Gkneral

OP Quebec

Reed.

Sup. C,
Canada.

nues. If the appellant's contention that this new tax is illegal 1883
simply because it is declared to be deemed payable to the Crown was
to prevail, it would follow that all such taxes of the same kind levied
since confederation are also illegal, and have been illegally levied,
since they also were all deemed payable to the Crown, and I do not
believe that the appellant would be prepared to go so far.

[429] As a matter of fact, I may remark here, both the Quebec
Provincial Legislature and the Dominion Parliament have, since con- Taschereau, J.
federation, recognized the existence of this building and jury fund,
the former by, amongst others, 41 Vict. c. 16, and 45 Vict. c. 25,
and the latter by the Insolvency Act of 1869, s. 152, and the Insol-
vency Act of 1875, s. 145.

It must also be observed that this Act 43 & 44 Vict. c. 9, is under
one of its special provisions (sect. 20) to be read as forming part of
the said Stamp Act of 1864, which, in its turn, must be read in con-
nection with the said c. 109 of the Consolidated Statutes. But
whether or not this building and jury fund has been abolished seems
to me immaterial. I say that if it still exists, the proceeds of this
new tax must go to it, though they are, by the Act, deemed payable
to the Crown the same as all similar taxes imposed before confedera-
tion, which, though also deemed payable to the Crown, go to that
fund ; and if there is now no such special fund, it is no objection to
the legality of this lax that it goes to the consolidated revenue,
wherein that special fund has merged, the same as similar taxes
imposed before confederation, which must now all go to that con-
solidated fund.

As to the ground that this is a new or an additional tax, I have
already said :

1st. That, although an indirect tax, it is not a tax for the general
revenue of the Province. ♦

2n.1. That the Provincial Legislature lias the power under sects.
65 and 129 of the B.N. A. Act to alter or amend the Acts under
which similar taxes existed on law proceedings at confederation.

3rd. That, consequently, the Provincial Legislature could im-
pliedly, as it has done by the enactment objected to (as it can
expressly), take awny from the Lieutenant-Governor in Council the
powers he had in viitue of the said Acts, nnd itself exercise these
[430] powers ; that, therefore, the Provincial Legislature has the
power not only to abolish or diminish the said taxes, or to transfer
a jiarticiilar tax from one proceeding to another, but that it can also
legally impose a tax or duty of a similar uature on proceedings or

^ t'l

m
m

208

PRIVY COUNCIL.

1883

Attobnkt-

Genbral

OF Quebec

Bbed.

Sup. C,
Canada.

Taschereau, J.

t )

llll'i

acts of procedure on which none were imposed at the time of con-
federation, ani I presume, though unnecessary to decide for the
purposes of the present case, on any new act of procedure created
since confederation, provided that the Province, in the exercise of
this power, confiues itself to the raising of a revenue to meet the
expenses of the administration of justice, on the system and basis
in existence before confederation.

GWYNNE, J. : —

The real question involved in this case appears to me to be,
whether any limit, and if any to what extent, is set by the B.N. A.
Act to the power of the Provincial Legislatures to raise revenue by
taxation. The scheme of the framers of our Federal Constitution, to
provide means for the support of the Provincial Governments and
legislatures, consisted primarily in a subsidy to be paid to each Pro-
vince in proportior its population, as ascertained by the census
of 1861. Acjorumgi^ by the 118th sect, of the B.N. A. Act, such
subsidy is provided to bo paid by the Dominion of Canada to the
respective Provirc of < . u. io, Quebec, Nova Scotia, and New
Brunswick. By this sub-sidy, supplemented by such revenue raised
by taxation, as is authorized by the 92nd section of the Act, together
with the public property and assets assigned to each Province, all
the expense attending the ciirrying on the several Px-ovincial Gov-
erments must be defrayed. Now, by the 2nd item of sect. 92, the
Legislatures of each Province are authorized to make laws in rela-
tion to direct taxation within the Province, in order to the raising of
[431] a revenue for Provincial purposes ; by the 9th item of the same
section they are autliDrized to make laws in relation to shop, ta^^^ern,
auctioneer and other licenses, in order to the raising a revenue for
provincial, \oca\ or municipal purposes ; and by the 15th item they
are authorized to make laws in relation to the imposition of punish-
ment by tine, penalty ov imprisonment for enforcing any law of the
Province made in relation to any matter coming within any of the
classes of subjects enumerated in sect. 92. These are the only sec-
tions which expressly authorize the I'aising, by any Act of the Pro-
vincial Legislatures, any revenue whatever by any system of laxation.
The public propertj- and assets transferred to each Province consti-
tute an additional source of revenue, but at present we have to deal
only with the power of the respective Legislatures to raise by taxa-
tion a revenue for Provincial purposes.

The express provision made by item 2, which, while it authorizes

lonzes

PRiW COUNCIL.

209

Attornbt-

Gbnkkal

of quvbec

Rbeo,

Sup. C,
Canada.

the Legislatures to make laws, in order to the raising of a revenue 1883

for Provincial purposes by taxation, limits the exercise of the
authority thus conferred to direct taxation, very clearly excludes,
in my judgment, the power of raising a revenue by any species of
taxation other than direct ; but it is contended that this is not so,
and that, as there is no express clause in the Act prohibiting
indirect taxation, the Provincial Legislatures have implied power
to raise revenue by indirect taxation to defray the expenses attend- Gwynne, J.
ing the exercise of their jurisdiction over each and every subject
placed by the 92nd section under their exclusive control, and that
the particular tax in question here being a stamp tax on legal pro-
ceedings, even though it be not a direct tax, is authorized by the
14th item of section 92, which places the administration of justice,
and among other things, the maintenance of Provincial courts,
under the control of the Provincial Legislatures ; the contention
[432] being that, for the maintenance of the courts and the adminis-
tration of justice, the Provincial Legislatures have, by force of this
item. No. 14, implied authority to raise a revenue by indirect
taxation. But that the maintenance of Provincial courts and the
administration of justice are Provincial purposes, there can be no
doubt. They are, therefore, comprehended within the purview of
item 2 of section 92, which in express terms prescribes direct taxa-
tion as the mode of taxation to be adopted for raising revenue for
Provincial purposes, so that, upon the principle of expresstim facit
cessare taciturn, there can be no such implied power involved in this
item 14 as is insisted upon. Moreover, if the contention were sound ,
then, upon the same principle, they could equally pass au Act
imposing a special tax of an indirect character for the payment of
Provincial officers under a power implied under item 4 of this 92nd
section, and another Act imposing another special tax, also of an
indirect character, to defray the expense attending the establish-
ment, maintenance and management of public &u(I reformatory
prisons, under the powers conferred by item 6, and another to
defray the expense attending the establishment, maintenance and
management of hospitals, asylums, etc. , under the powers conferred
by item 7 ; and, as in fact is boldly contended, other Acts imposing
indirect taxation to defray the expenses attending the maintenance
and management of all matters of a mert- ly local and private nature,
and so the effect would be, that this implied power of raising revenue
by indirect taxation, which it is contended the Legislatures have,
being exercised, as it might be if they have the power, to raise
U

<-y

210

PRIVY (01 XCIL.

Attounkv-

Gknkiui.

OF Qi:eui;c

Rkri).

Sup. C,
Canada.

Hi-

fiii |:j:

HI!

1S8S .«ufBcif nt revenue to defray all the cxpen.«e.-< of the Government aud

Legishitiires in respect of all the several matters under their control
and jurisdiction, it would be quite unnecessary lor them to exercise
[433] the power conferred by item 2, raising by direct taxation a
revenue for Provincial purposes, or to draw upon the revenue
created by the subsidy paid by the Dominion or by sale of the

public property, or other income arisin<; therefrom, or from the

Gwynne, J. assets assigned to each Province. Such a contention appears to me to
involve so palpable a reductio ad ahsurdum as to carry with it its
own refutation ; and indeed the judgment of the Pri^-y Council in
the Attorney-General for Quebec V. The Queen Insiirance CwnjMiiy (1),
in effect decides that the Pruvincial Legislatures cannot by any act
of theirs authorize the raising a revenue by any mode of taxation
other than direct.

It was further argued that, inasmuch as (as was contended) the
Lieutenant-Governor of Quebec could, under the 129th sect, of the
B. N. A. Act, impose the very tax which the Quebec Statutes 39
Vict. c. 8, and 43 & 44 Vict. c. 9, profess to impose, therefore it
must be competent for the Legislature by an act of legislation, to
impose a tax which the Lieutenant-Governor by an act in Council
could impose. Independently of the objection, which I have already
urged, that there being given by the B. N. A. Act express power to
the Provincial Legislatures with reference to taxation, and that
being of a particular and limited character, no power of a different
and an unlimited character can be implied, the contention under
consideration, which, however, is not, in my opinion, raised before
us in this case, proceeds upon the assumpticm that the Lieutenant-
Governor could impose the tax in question — a position which, as it
appears to me, requires for its establishment something more than
its assumption — for if the Legislature of the Province has only
p ^wer to impose direct taxation, and if the tax in question be not
a direct tax, it would seem to be inconsistent that the Lieutenant-
Governor could, since confederation, impose indirect taxation as a
[434] source of revenue for a I'rovincial purpose which, by the Con-
stitutional Charter, under which both Lieutenant-Governor and
Legislature exist, the Legislature has ko power to impose. The
(juestion which, in such case, appears to me to atise is, whether the
Acts, in virtue of which the Governor-General of the late Province
of Canada had, before confederation, power to impo le taxes of the

(1) 3 App. Gas. lOlM); ante, vol. 1., p. 117.

PllIVY COUN'CIL.

211

nt aud
jontrol
xevcise
at ion a
eveiiue

of the
om the
to me to
th it ita
uncil in
yany (1),

any act
taxation

ded) the
!t. of the
atutes 39
irefore it
lation, to
1 Council
e already
power to
and that
ditferent
in under
id before
(Utenant-
lich, as it
[lore than
has only
,n be not
lutenant-
Ltion as a
the Con-
•nor and
,ae. The
lether the
Province
63 of the

Attoknky-

Gkneral

of (.^ueiikc

REEr>.

Sup. C,
Canada.

nature of the tax in ([ueation, can be Acts whoso provisions are l.s.s;?

continued by the 120th sect, of tlie 13. N. A. Act, which enacts thatf
except aa otherwise provided by the B. N. A. Act, all laws in force,
titc, shall continue, etc., etc., whether in fact, if the Legislature is
prevented by the provisions of the B. N. A. Act from raiaing a
revenue by indirect taxation, the imposition of auch a mode of
tiixation by the Lieutenant-Governor in Council is not prevented
also ; and whether the provision limiting the power of the Legisla- Gwyiine, J,
tiire to the imposition of direct taxation is not auch a provision
otherwise as would exclude the Act under which such taxes had
been impoaed by the Governor in Council before confederation,
from the operation of the 129th aection of the B. N. A. Act 1 The
(i5th section apjjears to me to relate to acts of the Lieutenant-
flovemor, neceeaary for carrying on the Government merely, and
that, unless the Lieutenant-Governor has authority to impose this
tax under section 129, he cannot have it under section C5. Unless
the law or Act authorizing the imposition is continued by section
129, it is plain the Lieutenant-Governor could not impose it under
section 65. Here the question, however, is, whether the Acts or
Act of the Legislature of Quebec, professing to impose the tax in
<[Uestion, are or is ultra vires? and the answer to that question
depends upon the single point, namely : whether the tax is or not a
direct tax ? for the Lej^islatures have not, as it appears to me, any
[435] power to raise a revenue for any Provincial purpose by any
mode of taxation otherwise than direct. The whole expense of
Government and legislation for Provincial purposes, which terms
comprehend the whole expense attending all Provincial purposes
placed under the control of the Provincial Government and Legis-
lature, must be defrayed out of the produce of the public property,
and assets assigned to each Province, and the subsidy paid to the
Province by the Dominion — supplemented, if these sources of
revenue should be insufficient, by taxation of a direct character
only, in addition to the money raised under the special authority
given by clauses 9 and 15 of sectitm 92. And as I am of opinion
that tb-i tax in question is not a direct tax, a point, in my opinion,
concluded by the judgment of the Privy Council in the Attorney-
General V. The Queen Insurance Compamj (1), the appeal should be
allowed with costs.

(1) 3 App. Cos. 1090; oK^e, vol. 1, p. 117.

!'.t

if.

i^.

mm%

-t^^HK'i

H^K 'i"

MdM

::!

^^w

188»

Attorney

Gbnekal

or Quebec

Heed.

ii. B., Quebec.

Dorion, C.J.

I.r

h '

212 PRIVY t'OUNCIL.

Judgments in Quebec Court of Q.B. — Api-eal side (1).

DoRiON, C. J. : —

The respondent, wishing to test the legality of the taxes imposed
by the 43 & 44 Vict. c. 9 (Quebec), obtained a rule nisi for contempt
against the Prothonotaries of the Superior Court of the District of
Montreal, for refusing to receive and file an exhibit unaccompanied
by stamps to the amount of ten cents, as required by the article.

After the return of this rule the Attorney-Genet al for the Province
of Quebec obtained leave to intervene, to sustain the legality of the
tax, and contested the rule.

The Court below held that the tax was unconstitutional, and, dis-
missing the contestations of the appellant, declared the lule absolute
against the Prothonotaries, who were condemned to be imprisoned
in the common gaol of this district for a period of six months, unless
they sooner accepted and filed the exhibit offered by the respon-
dent. The Prothonotaries were further condemned to pay the
costs.

The appeal is by the Attorney-General alone. Had the Protho-
notaries appealed from the judgment, they might probably have
raised an important question as to regularity of the proceedings
adopted against them. They, however. Lave not done so, and the
only question submitted to us, as between the appellant represent-
ing the Province of Quebec and respondent, is as to the legality or
illegality of the tax, both parties having, at the hearing of the case,
waived all objections as to the form or regularity of the proceedings.

Before the B. N. A, Act, 1867, the Governor-in-Council was
authorized under the Con. Stat, of Lower Canada, c. 109, entitled
" An Act respecting Houses of Correction, Court Houses and Gaols,"
to impose taxes or duties upon legal proceedings had in any of the
Courts in Lower Canada (sect. 32, sub-sect. 1). These taxes or
duties were to be collected in each district by persons appointed by
the Governor-in-Council, and by them paid to the Sheriff of the
district, to form ptrt of the building and jury fund of his district.
(Sect. 15 and sect. 32, sub-sect. 2, of same Act. )

By an Act passed in 1864 (27-28 Vict. c. 6, sect. 4), it was pro-
vided that these taxes or duties should be collected by means of

(1) [The Judgments of the Judges
of the Queen's Bench and of Mr.
Ju8tic« Mackay in the Superior

Court, are printed from the appeal
book, prepared for the appeal to the
Supreme Covurt of Canada.]

PRIVV COUNX'IL.

213

(!)•

imposed

sntempt

iBtrict of

mpanied

t^cle.

Province

,ty of the

and, dis-
I absolute
^prisoned
h8, unless
e respon-
I pay the

e Protho-
ibly have
•oceedings
), and the
■epresent-
sgality or
the case,
iceedings.
luncil was
, entitled
jd Gaols,"
|ny of the
taxes or
•inted by
iff of the
district.

was pro-
leans of

pbe appeal
eal to the

Attorn EY-

Grnkrai.

of qukbec

Rrbi).

stamps. Duties were imposed by the Governor-in-Council, under 1883

these statutes, which were still in force when the confederation of

the several Provinces took place ; and by sect. 129 of the B. N. A.

Act, 1867, they were continued in force until they should be

repealed, abolished or altered by the Legislature having authority

under the Act to do so ; that is, by the Legislature of the Province (^. B., Quebec.

^•f Quebec. Dorbi^C.J.

In 1875; the Legislature of the Province of Quebec, by the Act,

31' Vict. c. 8, for the first time imposed a tax of ten cents on the
filing of every exhibit in a cause. This tax, payable by means of
stamps, was to form part of the Consolidated Revenue of tlie Pro-
vince of Quebec (sects. 1 and 2).

Tills Act was repealed by the 43 *S: 44 Vict. c. 9, and the same
tax of ten cents on the filing of exliibits was re-imposed (sect. !)).
Although this Act does not expressly declare that this tax shall form
part of the Consolidated Revenue of the Province, as the repealed
Statute (39 Vict. c. 8) did, yet it enacts that all the duties therein
mentioned shall be deemed payable to the Crown (sect. 3, snb-sect.
2), and they necessarily fall under the provision of the 31 Vict. c.
9, sect. 3, which declares that all revenue whatever over wliich the
Legislature of the Province has power of appropriation, shall form
one Consolidated Revenue Fund to be sppropriated for the public
Service of the Province.

This special tax has therefore been imposed since the B. N. A.
Act by the Legislature of the Province of Quebec, to form part of
the Consolidated Revenue of the Province.

By the B. N. A. Act, 1867, sect. 92, sub-sect. 2, the Legislature
of each Province is authorized to raise a revenue for Provincial
purposes by means of direct taxation, and fi'om the other sources,-
such as those mentioned in sub-sects. 5, 10, and 15, which have no
application to the present case.

To the Dominion Parliament is given the right to raise money by
any mode or system of taxation (sect. 91, sub-sect. 3). This right
is exclusive when not coming within the classes of subjects assigned
to the Provincial Legislatures, and as the Legislatures of the Pro-
vinces are only authorized to raise a revenue by direct taxation and
the other sources of revenue already mentioned, it follows that the
Parliament of Canada has the exclusive right to raise a revenue by
means of indirect taxes, and that the Legislatures of the Provinces
have no such right.

The terms of the Act seem clear on this point, and the Judicial

II i'i

214

PUIVY COUNCIL.

1883
ArroBNKY-

(iKNKRAL
0\f Ql'EDEC

I'.

Reeo.

Q. B.,<^i.b«c,

Dorion, C..I.

Committee of the Privy Council have so interpreted them by
deciding in the case of The Attorncy-Ocneial for Qiiehec v. The Queen-
hisMruHcc Company {\),i\\Ai the tax imposed on Insurance Com-
panies by tlie \rv 39 Vict. c. 7, of the Legislature of the Province
of Quebec, was ^dtra vires, as not being a direct tax.

The main, if not the only, question to be decided here is as to
whether t!ie tax imposed on the tiling of exhibits by means of
stamps in ii direct or an indirect tax.

Without entering into a minute examination of the authorities as
to what distinguishes a direct from an indirect tax, it will be sufh-
cient to quote an extract of the judgment of the Judicial Committee,
in the case just cite«l, to shew that their Loidships have, in that
case, laid dovm a rule as to what constituted an indirect tax in such
an emphatic manner that 1 cannot conceive how it is possible for us
not to be guided by their decision.

*' The single point to be decided upon this " [the effect of the 2nd
sub-section of the 92nd section], said their Lordships, " is whether
a Stamp Act — an Act imposing a stamp on policies, renewals, and
receipts, with provisions for avoiding the policy, renewal, or rec«pt,
in a Court of Law, if the stamp is not afKxed, — is or is not direct
tiixa^on ? Now, here again we find words used which have either
a technical meaning, or a general, or, as it is sometimes called, a
popular meaning. One or other meaning the words must have ; and,
in trying to tind out their meaning, we must have recourse to the
usual sources of information, whether regarded as technical words,
words of art, or words used in popular language. And that has
been the course pursued by the Court below. First of all, what s
the meaning of the words as words of art ? We may consider their
meaning either as words used in the sense of political economy, or
as words used in jurisprudence, in the Courts of Law. Taken in
either way, there is a multitude of authorities to shew that suih a
stamp imposed by the Legislature is not direct taxation. The
political economists are all agreed. There is not a single instance
produced on the other side. The number of instances cited by Mr.
Justice Taschereau, in his elaborate judgment, it is not necessary
here to do more than refer to. But surely if one could have been
found in favour of the appellants, it was the duty of the appellants
to call their Lordships' attention to it. No such case has been
found. Their Lordships, therefore, think they are warranted in

'1) 3 App. Gas. 1090 ; ante, vol. 1, p. 117.

is as to
leans of

oritie!* as
be suffi-
mmittee,
e, in that
X in such
ble for us

t the 2nd
i whether
iwals, and
)r recwpt,
[lot direct
ive either
called, a
ave ; and,
se to the
;al words,
that has
[1, what a
lider theii'
»nomy, or
[Taken in
lat suih a
n. The
instance
|d by Mr.
lecessary
lave been
.ppellants
as been
,nted in

I'UIVY COUNCIL.

215

ArroRNKY-

(iKNKKAI,

or <^»i:khki'
J*.

asHuniing that no such case oxist^i. As regards judicial inti-rpreta- \i>K\

tion, there are sonie English decisions, and several American

decisions, on the subject, many of which are referred to in the

judgment of Mr. Justice Taschereau. There, again, they are all

line way. They all tr^at stamps either as indirect taxation, or as

not being direct taxation. Again, no authority on the otiier side i ». H., «^utl>pc.

has been cited on the part of the appellant. ,, '. ,, ,

" Lastly, as regards the popular use of the words, two cyclopa-dias,

at least, have been produced, shewing that the popular n>ni of the
word is entirely the same in tliis respect as the technical use of the
word. And here, again, there is an utter deficiency on the j>art of
the appellants in producing a single instance to the contrary. That
being bo, it is not necessary, it appears to their Lordships, for them
to consider the scientific 'definition of direct or indirect taxation.
All that is necessary for them to say is, that finding these words
used in an Act of Parliament, and finding that all the then known
definitions, whether technical or general, would exclude this kind of
taxation from the category of direct taxation, they must consider it
was not the intention of the Legislature of England to include it in
tlie term direct taxation, and therefore that the imposition of this
stamp duty is not warranted by the terms of the 2nd sub-section of
sect. 92 of the Dominion Act."

This judgment is conclusive on the point in issue. A stamp tax is
not a direct tax, and therefore not within the legislative powers
conferred on the Ijegislatures of the several Provinces composing
the Dominion of Canada. The present tax is precisely of the same
character as the one which the Legislature of Quebec had imposed
on insurance policies by the 39 Vict. c. 7, and which was declared
unconstitutional.

In both cases the tax is imposed on commodities and is paid with
the expectation on the part of the party who pays it, that he will
recover it back from some other party, since in the one case the tax
was to be added to the premium of insurance, and in the other it is
to be included in the bill of costs. Moreover, in both cases, the
documents to which the required stamps are not attached, cannot be
received as evidence in a court of Justice. I fail to perceive an}'
distinction between this case and the one of The Attorney-Goieralfor
Quebec v. The Queen hisurance Compan\i (1).

It is, however, argued on behalf of the appellant that although it

(1) 3 App. Cas. 1090 ; ante, vol. 1., p. 117.

.,;!

■Oil .ii

.11

' fill

■III

';H

216

PRIVY COUNCIL.

l! ■ (

ini

Attorney-
General
OK Quebec

Reed.

1883 may he an indirect tax, yet, as it is raised for a special purpose, the

m« inienanrc of courts of justice, whidi, according to sub-sect. 14 of

sect. 92, is to be provided for by tlie Legislatures of the Provinces,

and as similar taxes existed when the confederation took place, and

were continued in force by the 120th sect, of the B. N. A. Act, 1887,

Q. B., Quebec, until altered or repealed, it was in the power of the Legislature of

T, '■ r, T the Province of Quebec to vary this tax and to adapt it to the new
Dorion, C.J. *^ '■

conditions of Provincial existence.

It is, moreover, argued that the bi»ilding and jury fund was
merged into the Consolidated Revenue of the Province by sect. 12(5
of the B. N. A. Act, and that the new taxes raised to defray the
expenses of the administration of justice must, of necessity, go inti)
the Consolidated Revenue Fund of the Province.

This might be a fair argument if the tax imposed by the 43 & 44
Vict. c. !), was the same as that which, at the time of the confedera-
tion, was levied under cap. 109 of the Con. Stat, of L. C, and if the
building and jury fund had ceased to exist and been merged into
the Consolidated Revenue Fund of the Province, but is this so in
point of fact? The building and jury fund under cap. 109 of the
Con. Stat, of L. C. was a local fund created for each district out if
certain sources of revenue arising withiu the district (sect. lo). The
tax on juilicial i)r.iceedipgs which formed part of this fund was a
local tax, levied by local ofKcers and for local purposes (sec^. 17).
The tax of ten cents, now under consideration, imposed under the
39 ^'■ict. c. 8, and since its repeal under the 43 A: 44 Vict. c. 9, is a
new tax which did not exist when tlie confederation took place. It
h a general tax payable into the Provincial treasury and applicable
ti) all the purposes for which the revenu'.'s of the Province may be
required.

There may be no provision in the B. N. A. Act to pre\ent the
Provincial Legislatures from authorizing the raising i>f a revenue
for local i)urposes bj* indirect ta:;atii>n, but there is one prohibiting
them from raising by such, means a revenue for general purposes,
and the British Parliament has made but onp exce])tion to this
prohibition I)y reserving to the Province of New Brunswick the
right to collect existing lumber dues, coupled with the condition
that they should not be increased (sect. 124). This fhews con-
clusively tliat the intentiiin of tlie Act was to deprive the Provincial
Legislatures of the right to levy any revenue for general purposes
by indirect taxation.

As to the contention that the l)uilding and jury fund has been

PRIVY COUNCIL.

217

Attorney-
General
OF Quebec

Rbeo.

abolished by sect. 12G of the Confederation Act and that the taxes 1883

and revenue accruing to it were merged in the Consolidated

Revenue of the Province, — even supposing it were so, this could

only authorize the Provincial authorities to receive existing indirect

taxes, but would not entitle tlie Provincial Legislatures to raise new

taxes ^or general purposes, and this tax ot ten cents would be q. b., Quebec.

excluded. But the simple reading of this sect. 126 shews that the T^ '■ n t

, Dorion, C.J.

duties and revenues which are to constitute the Consolidated

Revenue Fund to be appropriated for the public service oi each
Province, were those duties and revenues which before the con-
federation belonged to each Province and formed part of its revenue,
and did not comprise the special local funds held in trust f'>r special
purposes, such as the building and jury fund which was held by
the Sherifl's of each district to be applied to the repairs of court
houses and gaols and to the payment of petit juroi's in the district,
for the benefit of the inhabitants of the district. It is impossible
to suppose that the Imperial Parliament could have intended by a
general enactment such as is contained in sect. 120, to cast that
fund into the Consolidated Revenue of the Province to be applied to
totally different purposes, while it retained by sect. 129 the special
dispositions of the law under which this fund was raised.

As a matter of fact, this fund has been kept separate from the
general revenue of tlio Province, since confederation, as it was
before, and its existence has been expressly recogniseil by the
Leg'slatnre liy an Act passed in 1878 amending cap. lOS of the Con.
Stnt. of L. C. and exempting rural municipalities from contributing
to it, on making a declaration that they did not desire that the petit
jurors fif the municipality be paid for their services (41 Vict. q. 10).
The provisions of cap. lOi) of the Con. Stat, of L. C. being still in
force except as to such portions as may have been amended since
confedeiation, it is in the power of the finvernor-Cieneral in Council,
under sect. 19, to increase the contributions recjuirod from the muni-
cipalities to SMpply the deficiencies in the building and jury fund.
The eifeet of the present law, if constitutional, would be, in that
c;ise, thai while the districts would be made to support the repairs
of ga"ls and court houses and the payment of i>i'fit juroi's as hereto-
fore, yet the Legislature of the Province could witlidraw from tho
fund created for that'i)urpose the indirect taxes foiming i)art of it,
to apply the same to th.* general purposes and wants of the Province,
while they can only raise a revenue by direct taxation.

1:3

til'

IT!

4 "

t i

(if

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■ 1

>« 1

fli

■:l

liif

218

PRIVY COUNCIL.

Attorn ET-

Genrral

OF Quebec

V.
RiEI).

I.i

I -:i ■■

1888 I cannot find that this could have been intended by the franiers

of the Act, and being of opinion tliat the tax on the filing of txhibits
is an indirect tax which the Local Legislature had no right to
impose, I would have confirmed the judgment rendered by the
Court below ; but, the majority of the Court holding a different view
Q. B., Quebec, of the case, the judgment will be reversed.

Dorion, C.J. j. y .

This appeal gives rise to some embarrassment ; to my mind, how-
ever, to little difficulty. There is a technical point to which I at
once refer.

The action is taken against the Prothonotary by way of a pro-
ceeding for contempt, and the judgment condemns the Prothonotary
to go to gaol. This is certainly irregulai. If it be a question of
contempt, the way to bring it before this Court is by writ of error.
Our statutes give in express terms this remedy. However, without
tlie condemnation as for a contempt it is an order in a case, from
which there might be leave to appeal granted by special application.
It has not come up to us in that shape. We might, therefore,
perhaps, dismiss the appeal without adjudicating on the important
subject on which it was evidently the intention of the parties,
including the Attorney-General of the Province of Quebec, to liave
a decision. Although I think i; is a wise policy on the part of
Courts, generally to abstain from going further in delivering judg-
ment than is absolutely necessary to settle the differences betsveen
the parties, still there are cases where the nature of the «iuesti(>n is
such as to require a more ample treatment. This occurs when the
question involved is of public interest, and where both parties have
acquiesced in the proceedings and overlooked the technical difficulty.
To the people of this country the settlement of questions arising on
our statutory constitution is of the utmost moment, and the delay
of litigation, even for a year, may have the most disastrous results,
I think, therefore, we should be neglecting our duty if we failed to
(leal with this case on its intrinsic merits.

The Legislature of the Province of Quebec passed an Act (43 &
44 Vict. c. 0) by the 9th sect, of which it was enacted : " There
shall be imposed, levied and collected a duty of ten cents on every
vrrit :«f summons issued out of any County Circuit Court, Magis-
trates' Court or Commissioners' Court in the Province ; and a duty
of ten cents shall be imposed, levied and collected on each promissory
note, receipt, bill of particulars and exhibit whatsoever produced

■. r

PRIVY COUNCIL.

219

Attornet-

General

OK Quebec

Reed.

and filed before the Superior Court, the Circuit Court or the Magis- 1883
trates' Court, such duties payable in stamps."

This Act is declared to be an amendment and extension of an Act
of the Province of Canada, 27 & 28 V?"t. c. 5, "An Act for the col-
lection, by means of stamps, of fees of office, dues and duties payable
to the Crown upon law proceedings and registrations." (Sect. 20.) q. b., Quebec.
The duties levied under this Act are to be " deemed to be paj'able « j

to the Crown." (Sect. 3, sub-sect. 2.) These last words might

perhaps give rise to verbal criticism. It would seem by the terms
of the B. N. A. Act that the Queen forms no part of the Provincial
Government. Indirectly the Sovereign nominates the Lieutenart-
Governor, but he is not the representative of Her Majesty. He acts
by virtue of his office, and not by virtue of his commission, in this
respect like the Governor-General or other officer administering the
Government of Canada. But, although I think this criticism well
founded, as a fact the old language has been continued both in
sanctioning legislation and in carrying on those branches of adminis-
tration which have devolved on the local Governments. I take it,
tlierefore, that the Legislature intended, and did in effect, so far as
it could, declare that in addition to the duties hitherto authorized
to be levied by stamps on judicial proceedings in the Province of
Quebec, ten cents should be charged for each promissory note pro-
duced and filed in the Superior Court, and that this duty should be
collected by stamps and should form part of the general revenue of
the Province. It appears that by the 27 & 28 Vict, fees collected in
this way for judicial purposes were credited to a particular fund,
but they were declared to be fees payable to the Crown, and I can-
not see that this statutory rule of accountability, it is really no more,
can have any bearing on the question before us, except to shew that
they were fees collected for a local object. Subsequent to the pass-
ing of this Act of the 43 & 44 Vict by the Legislature of the Pro-
vince of Quebec, the respondent produced and attempted to file a
promissory note, without any stamp of ten cents being affixed. The
Prothouotary refused to take it without the stamp, and the respon-
dent refused to pay the duty on the ground that the statute was
beyond the powers of a Local Legislature. It is contended that the
revenues to be collected in the Province of Quebec under the 27 &
28 Vict. c. 6, do not belong to the Government of the Province, or,
as I understand it, that the Government of Quebec may not apply
the proceeds of these duties to its general purposes, but that the
duties so fixed prior to confederation, cannot be altered or, iTt all

> ^1

W^SSF

■^

220

PRIVV COUNCIL.

Attorney-
Gkneral

OF Ql'HBEC

Reki).

i i

1883 events, cannot be extended. A rule producing results so obviously

inconvenient naturally challenges scrutiny. It is difficult to realize

the idea that the Legislature should have intended to charge the

local Governments with the support of the admini.stration of justice

and at the same time to deprive them of their power to extend the

(i. B., t^iebec. means then recognised by law of providing tlierefor. The argument,

X, T however, i.s this : The local Government have only two means of

Ramsay, J. ' •'

— - raising money by taxation ; one is (not by licenses, as I have already

observed in the case of The Corpm-ation of Three Rivers v. Suite (1),
but) by legislation with relation to matter3 coming within the class
of shop, saloon, tavern, anctio- jr and other licenses, in order to
the raising a revenue for provincial, local or municipal purposes,
and by ''direct taxation within the Province" for a like purpose.

Now, it is said this ten cent stamp is not a license, and it is not
direct taxation. It is not pretended that it is a license, and, even
if it were admitted that it was not direct taxation, I do not think
the judgment sustainable. There is, however, a case of Angers v.
The Queen Insurance Co. (2), which, it is contended, implies that a
duty being subject to collection by means of a stamp, makes it neces-
sarily indirect taxation. It lias been said to I'everse the judgment
of the Court below was to overrule the ruling of the Privy Council
in Aii.'jersx. The Qnaen Instiraiice Co. (2). I am not prepared (-o
cany the authority of precedent so far as to say that I should be
governed by a s'ligle decision of a higher Court, which .appeared to
me to be clearl; aijainst principle, even if that Court drew its inspir-
ations fr(jm the same sources that we do. Still less should I be
bound by a single aivtt of the Privy Council, which clearly mis-
interpreted our law. This does not seem to be a revolutionary or
turbulent mode of performing one's duty. To this I may add that
so soon as the Privy Council lays down as a proposition of law, the
issue being clearly before them, that the local Goverinnents have no
p nver to tax otherwise than by licenses and direct taxation, and that
direct taxation moans certain taxes, and no more, then-I shall accept
the decision as conclusive, and conform my judgments to it, although
I know that its eft'ect must be to break up confederation. But I am
not going to discuss anew or ([uestion what was then decided, but
critically I . examiie what really was decided, and not what in the
gioas may seem to have been said. It appears to me that the report
examined does not suppnrt the view taken by the learned Chief

(I) 51^. N. 3.S0; ante, vol. 2, i.. 280. (2) 3 App. Cas. 1090 ; ante, vol. 1, p. 117.

PRIVY COUNCIL,

221

Attobnkt-

General

OF Quebec

TIbxd.

Justice, but only that the duty sought to be collected in that case, 1883

by a so-called license, was in reality an ordinary Stamp Act, and
indirect taxation.

Their Lordships say : — " The single point to be decided upon this
[the effect of the 2nd sub-section of the 92nd section] in whether a
Stamp Act, — an Act imposing a stamp on policies, renewals, and Q b., Quebec,
receipts, with provisions for avoiding the policy, renewal or receipt, Ramsay J
in a Court of Law, if the stamp is not affixed, — is or is not direct •—
taxation ?" It is true they say afterwards, in referring to the Eng-
lish and American decisions mentioned by Mr. Justice Taschereau,
" they (the decisions) all treat stamps either as indirect taxation, or
as not being direct taxation. " That is, these cases decide that the
particular Stamp Act referred to in each case was indirect taxation,
obiter dicta, precisely as the case of Angers v. The Qneen hisurance
/I) would be an obiter didnm, if it decided what it is contended it
did. No one can seriously contend as an abstract question, I should
think, that the form of collection, the evidence of payment, can
determine as to the nature of the impost. If there was a poll-tax
uD each elector and the law said that each elector should take a
receipt therefor on paper, bearing a penny stamp, it would hardly
be said that the penny stamp was a different kind of taxation from
the poll-tax. So far as my recollections carry me, there is not the
unanimity of opinion attributed to the economists as to the defini-
tions of direct and indirect taxation. It seems to me they are
generally dealt with as relative rather than as positive terms. They
are used to express economic results. One of the best known
rules is that taxation is direct when it i* paid by the party who
is impoverished by it. Thus, a duty on imports is regarded as
indirect taxation because the consumer and not the importer usually
bears the burthen. But if the consumer imports his own boots
the tax is as direct as it can be. Again, if this rule were dog-
matically true, it would include a license to shoot game, which might
very well be accorded by a stamp.

It is very true that the term direct taxation being used in a
statute in a positive sense, it is the particular function of Courts by
their decisions to give it a positive meaning.

In dealing with this tenn, the operation is one of considerable
difficulty, and we must take care in perfoi ming it, not to go outside
our commission inadvertently. We have to decide what direct taxa-

(1) 3 App. Cas. 1090; ante, vol. 1., p. 117.

wwy

a ,'

222

PRIVV COUNCIL.

iii il i

{
1
t

■

M\:

188a

Attoknky-
(Jkxku.vi,

OK QUKItKC

c.
Rkkd.

^. B., < Quebec.

Ramsay, J.

tion is within the meaning of the Act, but there is absolutely no
warrant in the B. N. A. Act for our rlecidinj^ tliat the hjcal Govern-
ments are prohibited from collecting taxes by one fnim or another.
As to the license it is different ; the form there is material. It
therefore appears to me to be indubitable, that we have authority
to say that direct taxation in the Act means a poll or a property and
income tax and no more, but we have no authority to say how it
shall be levied. While generally admitting the utility of reference
to writers on political economy, judgments, dictionaries and cyclo-
poedias for such enlightenment as they may furnish, it seems to me
that there are other guides to interpretation quite as safe. As an
example, I may (^uote from a still more recent decision of their
Lordships the following sentence : — " It becomes obvious as soon aa
an attempt is made to construe the general terms in which the
classes of subjects in sections 91 and 92 are described, that both
sections and the other parts of the Act must be looked at to
ascertain whether language of a general nature must not by neces-
sary implication or reasonable intendment be modified and limited."
(The Citizens Insurance ComjuDiij v. Parsons) (1).

I do not think it necessary to pursue the criticism further on this
point, for the power of the Local Legislature to enact the 43 & 44
Vict, appears to me to be beyond question, even if we were to hold
that the tax under consideration was indirect taxation. We have,
therefore, happily, nothing to limit or to modify. Sub. -sects. 14 and
16 give the right to the Legislature of the Province to pujs the law
in question.

In proceeding to explain this proposition, it is proper to make
two preliminary remarks : First, that the power of the local Govern-
ment to tax is nowhere conhned to licensis and to direct taxation,
as has been assumed. They are specially permitted to impose these
taxes ; that is all ; but this diflfers essentially from a prohibition to
impose any other taxes. Secondly, the sub-sections of sect. 92
must be read with the general heading to avoid misconception.
Thus read, sub-sect. 14 enables the local Governments to make
laws in relation to " the administration of justice in the Province,
including the constitution, maintenance and organization of Pro-
vincial CourlH, both of civil and of criminal jurisdiction," etc. Is
not the law int^nigned a law for the maintenance of justice in the
Province ? — nay more, a law modelled on the law existing at con-

(1) 7 App. Cas. 96, 110; ante, vol. 1., p. 205.

PRIVY COl NCIL,

223

Attounky-

Gknkral

ok qukueo

Reko.

ir '..ration for its luainttnance ? We have held in Corporation of 1888
Tlirec Jiivers v. Sidte (2), tliat municipal powers were to be delimited
by what then existed. Is it not a sin)ilar principle we now invoke i
Again, I would ask is this tax for the performance of a duty by a
local functionary not a matter of a merely local nature in this Pro-
vince ? Does it conflict with any Dominion power / Can it be con- q. b., thiebec.
tended for an instant that the power to raise money by any mode or „ j

system of taxation can be held to s'gnify that the Dominion Parlia-

nient could raise money on the duties to be performed by local
officers ? I have said that it has been assumed that the Local
Legislature had only power to impose taxes by way of direct taxa-
tion and by license. I mean assumed in discussic^n, for the practice,
as is frequently tlie case , is more logical than the didactic utterances
reganling it. As an example, a turnpike on a local road is a tax
precisely of the same kind as this. It is an exaction for a service
rendered. So, when the Government exacted passage money on the
North Shore Railroad it was a tax of a like kind, and I may add,
moreover, it was levied by a stamp.
I am to reverse.

make
lovern-

(these
lion to
let. 9-2
Option,
make
Jvince,
Pro-
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|n the
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Cross, J. : —

The appeal in this case is taken from a judgment declaring absolute
a rule taken against the Prothonotaries of the Superior Court at
Montreal, requiring them at the instance of Reed, the plaintiff in
this cause, to put on file as an exhibit a promissory note tendered
to them for that purpose by the plaintiff without the revenue stamp
of the value of ten cents being thereto affixed, as required by the
Provincial Statute 43 & 44 Vict. c. 9.

The Attorney-General intervened to maintain the right of the
Prothonotaries to exact the affixing of the stamps, as a condition
precedent to the filing of the promissory note ; which right was
dt nied by Reed.

This b/ought into question the au hority of the Provincial Legis-
lature to impose this tax.

The questions that arise under the B. N. A. Act of 1867, Imperial
Statute, 30 Vict. c. 3, are numerous and embarrassing as well as of
freqvient occurrence.

It is not possible in all cases to reconcile the powers whereby
sects. 91 and 92 are attributed respectively to the Dominion and

(1) 5 L. N. 330; ante vol. 2., p. 280.

224

PKIVV COUNCIL.

Attorney-
General
OF Quebec

Rbei).

I Hi!

1883 Provincial Legislatures, tier is it easy, apart from the question of

coijflict, tj determine the extent of the particular powers.

Before invoking considerations of a more extended character,
embracing notions of a general policy, presumed intention, or other-
wise, I think it is the duty of the judge to whom a like question to
Q. B., Quebec. *h® present is submitted, to inquire how far a solution of the difti-
„ J culty can be reached within the terms of the Statute itself, applying
to this task his appreciation of the context of the diflferent pro-
visions that mcay bear upon it, not omitting the desirability of
adopting, when practicable, such a construction as will facilitate and
give effect to the operation of the law, so as to secure as much as
possible the attainment of its objects.

Previous to confederation there existed various special funds per-
taining to the Revenue Department of the then Province of Canada,
raised by legislative authority for particular purposes, requiring
separate accounts thereof to be kept in the financial department of
the Government. Among these may be mentioned the building
and jury fund for Lower Canada, as a contribution to which, under
the authority of sect. 32, cap. 9 of the Con. Stat, of L. C. the
Governor was authorized by any order, or orders in Council, to be
from time to time made for such purpose, to impose such tax or
duty as he should see fit, on any proceedings in any of the Courts
in any of the districts in Lower Canada.

By Statute of the Province of Canada, 27 & 28 Vict. c. 5, the fees
under the tariff, made or to be made under the provisions of the
last previous'y mentioned Act, are made collectible by stamps.

By sub-sect. 14 of sect. 92 of the B. N. A. Act of 1867, there is
enumerated as among the exclusive powers of the Provincial Legis-
latures " the administration of justice in the Province, including the
constitution, maintenance and organization of Provincial Courts,
both of civil and of criminal jurisdiction, and including procedure iii
civil matters in those Courts."

It was to be reasonably expected that this duty should not devolve
upon the Province without according to it such revenue as had been
specially applicable to that particular purpose, such as the building
and jury fund. Accordingly, in the fourth schedule annexed to
the Act, the building and jury fund is enume'.'ated among the
assets to be the property of Ontario and Quebec conjointly.

By sect. 65 of the Statute it is enacted, that " All powers, authori-
ties and functions which, under any Act of the Parliament of Great
Britain, or of the Parliament of the United Kingdom of Great Britain

PRIVY COUNCIL.

225

the feea
of the

fhere is

Legis-

^ng the

;!ourt8,

lure in

devolve
Id been
lilding
led to
ig the

ithori-
Great
Britain

Attohnky-

Genkkal

of qukbeo

Rbkd.

ami Ireland, or of the Legislature of Upper Canada, Lower Canada, 1883

or Caiifida, were or are before or at the union, vested in or exercise-
able by the respective Governors or Lieutenant-Governors of those
Provinces, with the advice, or with the advice and consent, nf the
ri'spective Executive Councils thereof, or in conjunction with those
Councils, or of any number of members thereof, or by those Gover- q, b., Quebec.

nors or Lieutenant-Governors individually, shall, as far as the same m t

•" ' Cross, J.

are capable of being exercised after the union in relation to the Gov- — =-

ernment of Ontario and Quebec respectively, be vested in, and shall

or may be exercised by, the Lieutenant-Governor of Ontario and

Quebec respectively, with the advice, or with the advice and consent

of or in conjunction with, the respective Executive Councils, or

any members thereof, or by the Lieutenant-Governor individually, as

the case requires, subject, nevertheless (except with respect to such

as exist under Acts of the Parliament of Great Britain, or of the

Parliament of the United Kingdom of Great Britain and Ireland) to

be abolished or altered by the respective Legislatures of Ontario and

Quebec."

By sect 129 all law Courts of civil and criminal jurisdictions, legal
commissions, powers and authorities, and all officers, judicial, admin-
istrative and ministerial, are continued as if the union liad not been
made ; " subject, nevertheless (except with respect to such as are
enacted by or exist under Acts of the Parliament of Great Britain,
or of the Parliament of the United Kingdom of Great Britain and
Ireland), to be repealed, abolished or altered by the Parliament of
Canada, or by the Legislature of the respective Province, according
to the authority of the Parliament or of that Legislature under this
Act."

From the foregoing I conclude that the regulation, modification,
increase or diminution of the tariflF of taxes on legal proceedings as
a contribution to the building and jury fund was vested in the Gov-
ernoi-s of Canada in Council, and by the operation of the B. N. A.
Act the power passed to and became vested in the Lieutenant-Gov-
ernor of Quebec in Council, who, up to the time of the passing of
the Quebec Statute 43 & 44 Vict. c. 9, could have lawfully imposed
the tax now brought in questioii.

Under the authority of sect. 65 of the B. N. A. Act the
Legislature of Quebec had power to impose and did impose legally
the tax in question.

By sect. 126 such portion of the duties and revenues, over which
the respective Legislatures of Canada, Nova Scotia and New Bruns-

:■•'."<!!

»( ■M'H

226

PRIVY COUNCIL.

Attoknky-

Gknebal

OF Quebec

Reed.

1888 wick had before the uiiiun power of appropriation, as are by the said

Act reserved to the respective GovemmentL or Legislatures of the
Provincds, and all duties or revenues raised by them in accordance
with the special powers conferred upon them by said Act in each
Province, are to form one Consolidated Revenue Fund, to be
Q. B., Quebec, appropriated for the public service of the Province.

Cross" J There is no other than tliis Consolidated Revenue Fund out of

which the Courts can be maintained, or appropriations made for

building and maintaining Court Houses and Gaols. And 1 can see
no valid reason why the tax in question should not be levied and
pass into this fund, out of which appropriations must be made to
sustain the object for which the tax was originally imposed.

It is to be presumed that it will be applied and appropriated by the
Legislature in the manner antl for the purposes to which the building
and jury fund, whereof it formed a part, was designed to be applied,
but over that the Court can have no control — it falls to be determined
by the Legislature as a matter of public policy within their jurisdic-
tion. The question to be decided by us is simply whether the
power remains with the Legislature of the Province to lawfully levy
the tax in question.

I think it does so remain.

■

iL.

Judgment of the Superior Court.

Mackay, J. : —

These proceedings were commenced in May, 1881, by a Rule
taken by the plaintiflf against the Prothonotary to have him com-
pelled to receive and mark "filed " the promissory note upon which
the plaintiff's action is based. The Prothonotary has refused to file
that note because it has not upon it a ten cent law stamp. The
Prothonotary, answering the Rule, says that by sect. 32, of cap.
109, Con. Stat, of Lower Canada, it is ordered that the Govemor-in-
Council may impose taxes on law papers and proceedings ; that by
the 27-28 Vict. c. 5, it was ordered that stamps should stand instead
of the money taxes of the cap. 109 before referred to, or that might
be imposed in any Order-in-Council under it ; that by the -'^Ist
Vict. c. 2, of Quebec, the word stamps or stamp is defined to mean
all stamps issued under cap. 5, of 27-28 Vict, or any Order-in-
Council of the Governor of the late Province of Canada, or of the
Lieut. -Governor of Quebec, or under this Act (of 31 Vict.) or any

PRIVY COUNCIL.

227

Attornrt-

Gkneral

ok qurbeo

Rert).

Suj)erior C,
(Quebec.

Act of this Legislature ; that by sect. 12 of 27-28 Vict. c. 5, it is 1883
ordered that no paper or exhibit on which tax or duty to the Crown
is payable shall be received by any Court or officer until stamped ;
that by sect. 10 of 31 Vict. c. 2, also, it is ordered that no paper
upon which stamp ought to be, shall be received by any public
officer ; that by the Act of ^Quebec, passed in the 39th year of Vict.

c. 8, it was said and is ordered that a tax of ten cents shall be

payable to the Crown for the use of the Province upon each exhibit Mackay, J.
produced or offered in the Superior Court, etc., and that all disposi-
tions of law applicable to formal duties or taxes such as this should
apply to the tax or duties imposed by this Act of 39 Vict. ; that by
the Act of Quebec, 44 Vict. c. 9, all these Stamp Acts have been
amended and recast, and a tax of ten cents imposed upon each
exhibit offered to the Superior Court, and order made that no
exhibit shall be received unless stamped. Then a proclamation by
the Lieut.- Governor of Quebec is vaguely set forth, by which it
was ordered by him and the Council that all exhibits should be
stamped (when this was published is not stated, nor is it stated from
™hat date the order is to take effect). That they (the Prothonotary)
are only doing their duty in asking a ten cent stamp to be put upon
the promissory note offered as an exhibit by the plaintiff ; that the
plaintiff has no right to get the order he seeks against them, and
they conclude for the discharge of the rule. There is answer by
the plaintiff that the Quebec Legislature statute law, by which the
Prothonotary would justify the claim of a ten cent stamp from
plaintiff, was and is rdtra vires of the Legislature, not warranted
seeing the B. N. A. Act of 1867, that the ten cent tax or stamp
■duty is not authorized by that Act, and is not direct but indirect
taxation, and therefore illegal, and so the rule taken must b&
absolute. The Attorney-General of Quebec has intervened in the
case to support the Prothonotary, and his claim to have that ten
cent stamp before filing the promissory note referred to. For
reasons of intervention he repeats very much the arguments of the
Prothonotary, but commences by alleging formally that the adminis-
tration of justice is left to the charge and under the control of the
Provincial Legislature ; that this administration causes great expense,
and necessitates the employment of officers and servants, all of
whom have to be paid by the Provincial Governments ; that parti-
cularly the Government is obliged to employ persons to have care of
all documents produced before the different Courts of law, and that
by law these persons are paid out of the Consolidated Revenue

i-m

228

PRIVY COUNCIL.

A'lTtJKNKY-

(Jbnkhal

OK (^UKBKC
V,

Rkki).

Superior C,
(Quebec.

i ;

1 I''

1 ! ■
J

1883 Fiuicl of the Province. The plaintiff answers the Attornoy-rrenural

very much as ho does the Prothonotury ; lie adds some allo{,'ation8,
for instance, this one, that the ten cent ta.v upon exhiliits demanded
from i)laintift' has no connection with the fees or salaries of the Pro-
thonotaries or others employed in the Courts. Having thus fully
stated the pleadings, I observe that the tax of ten cents on exhibits
was first imposed by the 8!) Vict. c. 8, of Quebec, entitled " An Act
Mackay, J. to aid the grant for the purposes <if the administration of justice."
Its first section imposes a duty of ton cents, payable to the Crown,
for the uses of the Province, to be levied on each receipt, bill of
particidars and exhibit whatsoever, produced before the Courts.
By its second section the duty is ordered to form part of the Con-
solidated Revenue Fund of the Province. These two sections of the
39 Vict, have been repealed by the -13-44 Vict. c. i), of Quebec,
entitled " An Act to amend and consolidate the different Acts
therein mentioned, in reference to stamps." Its sect. !) again
enacts the duty of ten cents on bills of particulars, and exhibits,
produced before the Courts. The moneys levied fall, by the 31 Vict,
c. 9, to the Consolidated Revenue Fund. The 43-44 Vict. c. 9,
•orders that it and the 27-28 Vict. c. 5, of the late Province of
Canada, as thereby amended, shall be read together as one Act.
This 27-28 Vict, authorized stamps to be issued by order of the
Governor-in-Council, and the provisions of it are ordered to extend
to the taxes and duty imposed by the 32nd sect, of cap. 109 Con.
Stat. L. C, "so long as such fees continue to form part of the
building and jury fund, or of the Officers of Justice Fee Fund."
Under the constitutional Act, the B. N. A. Act of 1867, the Pro-
vinces may not tax, or raise revenue, just as they please. Sub-sect.
2 of sect. 92 of it only permits direct taxation in order to the raising
of a revenue for Provincial purposes ; a later sub-section allows also
shop, saloon, tavern, auctioneer and other licenses in order to the
raising of a revenue for provincial, local and municipal purposes.
The Imperial Parliament has designedly laid specific restrictions
upon the taxing power of the Local Legislatures. It has not
abandoned the taxing power to their mere will. So the question,
What is lawful taxation / may always be brought before the Courts
and will have to be deci<Ied ultimately by the judiciary. It has
been argued that the ten cent duty is "direct taxation." If it be
that, it has been well enough imposed. What is direct taxation ?
Its prominent feature is that it is exigible from, and is to be borne
by him who immediately pays it ; a tax which the person first paying

PRITY COUNCIL.

229

ArrouNKY-

(jiKNGUAL
OK t^UKBEO

Reki).

Mackay, J,

it uiay charge over to oi- against any other is an indirect tax. 1883

Stamp diitioH on law papers anil proceedings are expressly called
indirect taxes by almost all the writers on political economy, by
all, in fact, except one, Mr. Craig, in so far as I have been able to
discover. He wrote seventy odd years ago. It has been said lor
the Attorney-General that tlie Local Legislature charged with the Superior C,,
administriition of justice can impose any tax in order to provide for *^ "*' °'
that administration. But it is not so ; fur, as .said before, the Local
Legislature can only tax as by the B. N. A. Act. The framers of
that Act knew the import of words. They knew what the power of
taxation was and means. They give power to tax "by any mode or
system," to the Uominion Parliament. Our condition would have
been intolerable had like p v)wer been conferred upcjn the Local
Legislatures. So the power of these is limited de.signedly, as I
have said before. It has also been said that this stamp tax might
havo been imposed by an Order-in-Council, under Con. Stat. L. C,
c. 109, sect. 32, entitled ''An Act respecting Houfcs of Correction,
Court Houses and Gaols." But it has been imposed, not by the
Lieut. -Governor-in-Couticil, but by another body, the Legislature,
and its i»ooeeds are to go, not to the building and jury fund, but
to the Consolidated Revenue Fund ! The question before me is as
to the power of the Legislature, not of the Govemor-in-Council. I
hold the stamp duty in question to involve not direct, but indirect,
taxation, and that the Legislature of Quebec in imposing it has
exceeded its powers. This stamp duty does not answer the descrip-
tion given of "direct taxation," and is no more such than was the
one on the policies of insurance under 39 Vict. c. 7, of Quebec ; (1)
so the rule taken by the plaintiff must be made absolute, and the
intervention is dismissed.

(1) [Sec Attorney-General for Quehec v. Queen Ins, Co., 3 App. Gas.
1090;a«<e, vol. 1., p. 117].

I'.fll

i-;i

„- i' 'J

t k!

l.l

230

SUPREME COURT OF CANADA.

1883*

SUPREME COUItT OF CANADA.
Alphonse Poulin Appellant ;

AM)

March 5.

I8g4« The Corporation of Quebec Respondent.

e/ ruary ■ . q^^ appeal from the Court of Queen's Bench for the Province of Quebec

[Reported 9 Can. 8. C. R. 185.]
Municipal Instituiions — Regulation of mle of liqiiors — 4^-43 Vict.

C-. 4, Q.

The Provincial Legislatures have authority to prohibit or regulate
the sale of liquors in saloons or taverns on Sundays or at
special times.

The S+atute 42-43 Vict. c. 4 (Quebec) which vequires houses in
which spirituous liquors etc. are sold, to be closed during the
whole of Sunday and on every other day between 11 p.m. and
5 a.m. is valid, (Ritchie, C. J., and Strong and Fournier, JJ.)

[186] Appeal from a judgment of the Court of Queen's
Bench for the Province of Quebec (Appeal side) (1). The
following case w&u submitted to the Supreme Court of
Canada.

"At its session of 1879, the Legislature of Quebec
passed an Act containing the following enactments :

" ' Every person licensed or not licensed to sell by retail
in quantities less than three half pints in any city, town
or village whatsoever, spirituous liquors, wine, beer, or
temperance liquors, shall close the house or building in
which such person sells or causes to be sold, on any and
every day of the week from midnight until five o'clock in
the morning, and during the whole of each and every

! ■ -■

■ fresent :— Ritchie, Co., and Strong, Fournikr, Hknry, Tasohkrkau

and GwYNNE, JJ.
(1) 7 Quebec Law Rep. 337 ; post, p. 237.

SUPREME COURT OF CANADA.

231

Sunday in the year ; and during the same period, no i883-4

person shall sell, or cause or allow to be sold or delivered, pIj^iN

in such house or building, or in any other place, spirituous „ ^^

* ■' r ' r Corporation

liquors, wine, beer, or temperance liquors, the whole ok Quebec.
under a penalty for each and every infringement oi the Statement.
present provisions, of a fine not less than thirty dollars
and not exceeding seventy-five dollars and costs, and in
default of payment of such fine, to an imprisonment for a
period not exceeding three months in the common gaol of
the district in whi» h the said infringement occurred.'

" On the 18th of January, 1880, the appellant was, and
had been for some time before, keeping a restaurant
within the limits of the city of Quebec.

"Being prosecuted by the respondent before the
Recorder's Court of the city of Quebec for infringement
of that statute, he pleaded to the jurisdiction of the
court, and especially the unconstitutionality of the Act
as being ultra vires of the Legislature of Quebec. He
was, nevertheless, on the 17th of February, 1880, con-
demned to pay a fine of $40 and $1.65 costs.

" The appellant sued out and obtained a writ of pro-
hibition to rvdvent execution of that judgment.

"It was proved in the case, that on the day [187]
mentioned in the conviction, viz., the 18th of January,
1880, the appellant was keeping a restaurant within the
limits of the c'ty of Quebec, where he used to retail
spirituous liquors in quantities less than a half pint,
and that, although the said day was on k^unday, he had
not kept his establishment closed.

" On that proof the Superior Court quashed the writ
of prohibition."

F. Langelier, Q. C, for appellant. This appeal in-
volves the decision of two questions of law : 1st. Can a
Local Legislature pass a law prohibiting the sale of spirit-

IP ^

i : ■■

1
1

232

SUPREME COURT OF CANADA.

POULIN

COKPOHATION

OF QUEBKO.

!^t

1883-4 uous liquors on Sundays and at certain hours of other
days ? 2nd. Does the statute of Quebec, 42-43 Vict. c. 4,
s. 1, punish the selling only of liquors within the pro-
hibited time, or also the opening of the establishment
Argument, where they are sold ?

It is now beyond all doubt that Local Legislatures can-
not totally prohibit the sale of such liquors. This Court,
in the case of the City of Fredericton v. The Queen (1),
has laid down as a rule. 1st. That the power to eaact
such a prohibition cannot belong to both the Local Legis-
latures and the Parliament of Canada. 2nd. That it be-
longs to the Parliament of Canada; and that ruling has
been confirmed by the Privy Council in the case of
Russell V. The Queen (2).

There would be no difficulty, therefore, if the statute in
question contained a complete prohibition ; but it is con-
tend-^.d that the ruling of this Court cannot apply to it
because it does not prohibit, but only restricts the sale of
spirituous liquors.

This is a mere quibble. A restriction is a partial [188]
prohibition ; in the present case the prohibition is for Sun-
days and certain hours of other days. If this reasoning was
to prevail, nothing would be easier for a Local Legislature
than to encroach upon the exclusive power of the Parlia-
ment of Canada to prohibit such trade ; all they would
have to do would be to prohibit the sale at all times,
save a few minutes every day, or every week.

It has been contended that such a statute is within the
class of local statutes, or of statutes concerning municipal
institutions.

Even were that true, it would not affect the question at
issue. That statute unquestionably deals with and regu-
lates a certain trade or commerce. Therefore, according

(1) 3 Can. S. C. R., 505, 574 ; ante vol. 2, p. 27.
(2) 7 App. Cas. 829 ; ante vol. 2, p. 12.

SUPREME COURT OF CANADA.

233

TOULIN

COUPORATION

OF QUEBKO.

to the decision, City of Fredericton v. The Queen (1), it 1883-4
cannot be considered as being within the powers of Local
Legislatures.

But it is not true that the statute in question is a mere
municipal regulation, or a law of a local nature. It is Akgumknt.
admitted to be intended to repress intemperance, to
prevent drunkenness ; therefore its object is one of
general interest ; intemperance and drunkenness are
just as much evils in Halifax as in Quebec.

If the object of the law is of general interest, are the
means ena':;ted for that purpose of a local nature ? Not
at all ; those means consist in compelling those who sell
spirituous liquors by retail, to close their establishments
at certain times, and in preventing them from selling
within certain hours. Now there is nobbing local in
those means ; they would be just as effective at Winnipeg
as at Charlottetown : Russell v. The Queen (2).

The power to enact such a law is not included in the
power given to Local Legislatures to regulate municipal
institutions. The olject of such institutions is to give
to each locality the particular regulations required [189]
by its local wants. No municipal institutions would be
needed if the making and keeping of roads, bridges, the
prevention of abuses prejudicial to agriculture, could be
regulated in the same manner all over i country. But
they are necessary on account of the fact that a special
regulation is required for each locality.

n'i;

C. P. Pelletier, Q. C, for respondent :

[190] Before the other courts, the appellant has con-
tended not only that to establish an offence it would have
been necessary for the respondent to prove a sale of liquors*
but also that the Legislature of Quebec had no right to
prohibit the sale of intoxicating licjuors on Sundays.

(1) 3 Can. S. C. R. 605; ante vol. 2, p. 27. (2) 7 App. Cas. 829 ; ante vol. 2, p. 12.

■-^f

■^~

i r

tifl

1 ^

i ■

\ i ■

234

SUPREME COURT OF CANADA.

POULIN

Corporation
OP Quebec.

1883-4 As the complaint in this case is only "for not [191]

having closed," and not for " having sold," if the statute
is interpreted as making an offence of the mere fact of
"not closing," and if the conviction against the appellant
Argument, i? found to be valid, it is of little moment, for the ends of
this case, to consider the question of the prohibition of
selling liquor on Sundays.

However, as that incidental question has been strongly
dwelt upon before the other courts, and as the other
courts have considered it with much attention, it may be
convenient also to consider it now.

Although the Parliament of Canada under the power
given to it to regulate trade and commerce alone has the
power to prohibit the trade in intoxicating liquors, yet
the Provincial Legislatures, under the power given to
them, may for the preservation of good order in the
municipalities which they are empowered to establish
and which are under their control, make reasonable police
regulations, and may to some extent interfere with the sale
of spirituous liquors.

The provisions of the Provincial statute 42-43 Vict-
c. 4, ordering houses in which spirituous liquors, etc., are
sold to be closed on Sundays and every day between
eleven o'clock of the night until five of the clock of the
morning, are police regulations within the power of the
Legislature of the Province of Quebec.

The reasons for arriving at this conclusion are fully
stated by Chief Justice Meredith in the case of Blouin v.
The Corporation of the City of Quebec (1), and I rely upon
that decision.

Ritchie, C. J. : —

1 cannot see how it can be said that prohibition will not
lie without first determining whether the Act is ultra vires

(1) 7 Quebec Law Rep. 18 ; ante vol. 2, p. 868.

SUPREME COURT OF CANADA.

235

[192] or not, for if the Act is ultra vires, then I can see 1883-4

no reason why prohibition would not be a proper remedy, p^tv

because there could then be no pretence that the Re- ^ ''•

\ Corporation

cortler's Court could have jurisdiction over an offence of Quebec.
alleged to be created by a statute which had no legal Ritchie, c. J.
existence ; but holding the Act to be intra vires, I fully
appreciate the position taken by Mr. Justice Ramsay,
that the Recorder's Court having jurisdiction over the
subject-matter legislated on, however badly it may judge
it cannot be stopped by prohibition, on the pretext that
it has misconstrued the Act.

Mr. Justice Ramsay clearly acted on this view, for
before holding that prohibition would not lie, he expressly
held that the Local Legislature had authority to prohibit
or regulate the sale of liquors in saloons or taverns on
Sundays, or at particular times, as being purely a matter
of police regulation, and consequently within the powers
of municipal corporations.

When, in the case of Regina v. Justices of Kings (1),
I was called upon to adjudicate on the right of the Pro-
vincial Legislatures to prohibit absolutely the sale of
spirituous liquors, and I arrived at the conclusion that
the legislative power to do this rested with the Dominion
Parliament, I advisedly and carefully guarded the enuncia-
tion of that conclusion in these words : " We by no means
wish to bo understood that the Local Legislatures have
not the power of making such regulations for the govern-
ment of saloons, licensed taverns, etc., and sale of spirit-
uous liquors in public places, as would tend to the
preservation of good order and prevention of disorderly
conduct, rioting or breaches of the peace. In such cases,
and possibly others of a similar character, the regulations
would have nothing to do with trade or commerce, but
with good order and local government, matters of munici-

:!(•!'!

' I

■.iii

ii'!|

iiili

V I t

(1) 2 Pugsloy 535 ; ante vol. 2, p. 499.

^^^

t !

■ ! i

236

SUPREME COURT OF CANADA.

POUIJN

OOUPORATION

OF QUKBEO.

1883-4 pal police and not of commerce, and which municipal
institutions are peculiarly competent to manage and
regulate."

[193] I still think, as I did then, that a provision such
Ritchie, C. J, as sect. 1, of the 42-43 Vict. c. 4, Quebec Act, is within the
legislative authority of the Provincial Legislature, as being
sim[)ly a local police regulation, and which the Local
Legislature has, a3 incident to its power to legislate on
matters in relation to municipal institutions, a right to
enact.

As at the time of the passing of this Act and at the time
of the committing of and conviction for the alleged breach
of the law, there was no Dominion legislation contraven-
ing in any way the provisions of this Provincial law, it
is not necessary, for the purposes of deciding this case, to
inquire or determine if, and in what particulars and to
what extent, the legislation of either will prevail over
that of the other, when the Dominion Parliament is legis-
lating for the peace, good order, etc., of the Dominion — or
on the subject of trade and commerce in connection with
the traffic in intoxicating liquors — should the Dominion
legislation conflict with the Provincial.

In the view I take of the inapplicability of the remedy
by prohibition, the Act being, in my opinion, intra vires,
it is unnecessary to express any opinion as to the con-
struction of the first sect. 42-43 Vict. c. 4, though I by
no means wish it to be understood that I think the con-
struction placed on the statute by the Recorder's Court
incorrect. I merely express no opinion on it, as not being
necessary for the determination of the case before us.

1 1:

1:1

Strong, J. : —

I agree wiL the Chief Justice that the attempt to
impeach the constitutional validity of the statute under
which the appellant was convicted, as being ultra vires

SUPREME COURT OF CANADA.

237

municipal
lage and

ision such
vithin the
e, as being
the Local
igislate on
a right to

%t the time
ared breach
contraven-
cial law, it
his case, to
ars and to
-evail over
mt is legis-
ninion — or
iction with
Dominion

[he remedy
intra vires,
the con-
)ugh I by
Ik the Con-
or's Court
not being
tre us.

ttempt to

ite under

[lira vires

of the Legislature of the Province of Quebec, altogether 1883-4

[194] fails. In the Queen v. Taylor (1), I expressed my con- p^u,

rurrence in the decision of the Supreme Court of New _, "•

^"' _ ... Corporation

Brunswick, in the case of the Justices of Kings (2), in «*' Quebec.
which it was held that under the authority conferred by Strong, J.
the B. N. A. Act to legislate respecting municipal institu-
tions, the Provincial Legislature possessed that power
ffenerally denominated the police power, to regulate the
sale of spirituous and intoxicating liquors, and I adhere
to that opinion. Then, I think that this appeal must be
disposed of without pronouncing any opinion upon the
question of statutory interpretation which was argued
before ns, for it is plain, as I read the authorities, that
this is not a case in which the writ of prohibition will lie.
[The remainder of the judgment is occupied in con-
sidering whether the writ of prohibition would lie. The
learned Judge was of opinion that the writ issued im-
piovidently and was properly quashed.]

FouRNiER, J., concurred with the Chief Justice.

[Henry, Taschereau and Gwynne, J J., did not give
any opinion on the constitutional question. The learned
Jmlges considered that the penalty imposed on the appel-
lant by the Recorder was not authorized by the statute
4248 Vict. c. 4, and that the prohibition was therefore
rightly granted.]

Judgments in Quebkc Court of Q. B. — Appeal Side.

[ RepoHed 7 Quebec Law Rep. 337.]

[Trmislated.]
[Tessier, J. ;—

[338] This case is of more than ordinary interest, not only as a

[inestion of jurisprudence, but also as a question affecting order and

jpublic morality.

(1) 36 U. C. Q. B. 218.

(2) 2 Pugsley 535 ; ante vol. 2, p. 499.

) I

. hi

, I

238

SUPREME COURT OF CANADA.

1881

POULIN

COKPOKATION

OF Quebec.

Q.B., Quebec.

Tessier, J.

The appellant, Poulin, has been sentenced in the first instance by
the Recorder's Court of the City of Quebec to pay " a tine of $4(>
for not having closed during the whole of Sunday the 18th of Jan-
uary, 1880, the house or building in which he sold spirituous
liquors.'

Against this sentence Poulin obtained a writ of prohibition from
the Superior Court. After trial and argument this latter Court, pre-
sided over by the Honourable Chief Justice Meredith, on the 23id
of March, 1881, affirmed the sentence of the Recorder by the follow-
ing judgment :

" Considering that although the Parliament of Canada under the
power given to it to regulate trade and commerce alone has the
power to prohibit the trade of intoxicating liquors ; yet that the
Provincial Legislatures under the power given to them, may, for the
preservation of good order in the municipalities which they are em-
powered to establish and whichareunder their control, make reason-
able police regulations, although cuch regulations may to some
extent interfere with the sale of spirituous liquors ;

" And considering that the provisions of the Provincial statute
42-43 Vict. c. 4, ordering houses in which spirituous liquors, etc., are
sold to be closed on Sundays and every day between eleven of the
clock of the night until five of the clock of the morning, are police
regulations within the power of the Legislature of the Province of
Quebec ;

•' And seeing that, by the section number five of the last men-
tioned statute, keepers of hotels and houses for the lodging and
entertainment of travellers are to a certain extent exempted from
the operations of the said statute, but seeing that the plaintiff, even
according to his own allegations, is not, and was not at the time he
was prosecuted and convicted, as complained ot by him, one of the
persons so exempted from the operation of the said statute ;

" It is, in consequence, ordered and adjudged that the writ of
prohibition in this cause issued be and the same is hereby set aside
and quashed, and the petition and demand of the said Alphonse
Poulin is hereby dismissed, the whole with costs in favour of the
defendants."

[339] It is from this judgment that there is an appeal to tiiis
Court.

The appellant Poulin, has put forward several objections, amongst
others : that the statute of the Legislature of Quebec, 42-43 Vict. c.
4, under which this sentence was pronotlnced in the first instance,

SUPREME COURT OF CANADA.

239

stance by
le of ^40
h of Jan-
ipirituoiis

tion from
lourt, pre-
1 the 23nl
,he follow-
under the
e has the
t that the
lay, for the
ey are em-
ike reason-
y to some

cial statute
jrs, etc., are
>ven of the
are police
Province of

last men-
tdging and
npted from
intiff, even
;he time he

one of the
|te ;

;he writ of

(y set asiile
Alphouse

>ur of the

pal to this

L, amongst
I43 Vict. c.
kt instance,

POULIN

CORPORATIOK

OF (Quebec.

is lUtra vires, not comprised in the jurisdiction and functions of the I88I
Legislature of Quebec, because the Confederation Act (section 91)
gives the Federal Parliament exclusive power over " the regulation
of Trade and Commerce."
It is one of the rules in the interpretation of a statute that all its

provisions must be compared in order to give them a reasonable ' ''.

sense according to the intention of the legislator and so as to render Te saier , J.
the statute more effective in practice. Now in the division of legis-
lative powers between the Federal Parliament and the Provincial
Legislatures.the language used allows the greatest elasticity of inter-
pretation in order to leave to the Courts the power of applying
them, not to create a conflict between the legislative bodies, but to
facilitate the execution of those different powers.

If it were necessary to give a strictly literal interpretation to these
words "regulation of trade and commerce," we might repeat the
adage, " the letter killeth ; " but it is necessary rather to add as the
whole adage expresses it : " the letter killeth, but the spirit of the
law giveth life. "

In fact we should destroy the extensive powers which the Confed-
eration Act has given exclusively to the Provincial Legislatures,
amongst others :
" Municipal Institutions."

" Shop, saloon, tavern, auctioneer and other licenses," etc., and
" property and civil rights in the Province."

" Generally all matters of a merely local or private nature in the
Province." (Section 92.)

Is it not part of" municipal institutions to make rules and police
regulations for preventing disorder on Sunday and at night, by com-
pelling innkeepers and saloon-keepers to keep their bars closed
during the above mentioned times ?

Is it possible to question the power of our Local Legislature, or
even of our municipal corporation, to prevent the sale and storing
of powder except in certain places and with certain precautions for
public safety ? This however is a matter of trade like all others.

[340] It is manifest that by the words trajic et commerce, esiiocially
tlie English words " trade and commerce," it was intended to
express legislation over the general interests of commerce which
relate to the whole Dominion of Canada, the mode of importing and
exporting merchandise, the storing of this merchandise in towns so
as to protect the customs, entire prohibition in certain cases for the
general protection of the commerce of the Dominion, but not

i ■ H

■1 ^l*

} t .1

240

SUPREME COURT OF CANADA.

mmi

1881

POULIN

!'.

COKPOHATION

OF (^IIEBKC.

(^.B., Quebec,
Tessier, J.

spucial laws of Provincial Legislatures which do nothing more than
regulate the mode of selling and trading in certain " luatterg of a
merely local nature in the Province."

1 am not amongst those who can be induced to limit the rights of
the Provinces in useful le^^'islation lor the public good, e8))ecially
when the Federal Government armed with the power of placing a veto
on these Acts of the Provincial Legislatures does not think fit to dis-
own them. (Section 90.)

This Provincial statute tlipn comes completely within the powers
of the Legislature of Quebe*.

The second objection is serious and relates to the i)articular
words of this statute, which constitutes the offence in question. Do
these words of sect. 4 of the Quebec statute of 1879, 42-43 Vict.,
include one offence only of keeping the house oi^en and selling there-
in drink on Sunday, or two offences, the one of keeping the house
open and the other of selling therein drink or spirituous liquors /

[ The remainder of the judgment is occupied with the consider-
ation of this second objection. The learned Judge was of opinion
that the intention of the Act was to constitute two distinct offences.]

I have much pleasure in concurring in this judgment of the Court
of Appeal which confirms the sentence of the Superior Court on all
points as well as the original sentence.

EaiMsay, J. : —

[341] The principal question raised in this case, is as to the
authority of the Local Legislature to prohibit or regulate the sale of
liquors in saloons or taverns on Sundays or at particular times. It
seems to me that this is ijurely a matter of police regulation, and con-
sequently it is within the powers of municipal corporations, and that
the exercise of such a power cannot be considered aa being a restric-
tion of trade and commerce. It is possible, as the appellant
suggests, that this decision may lead the way to questions of greater
difficulty, but it is also possible we may be relieved from the
responsibility of their decision.

A second question in this case is whether the act charged is an
offence at all. I do not feel called upon to express any opinion as to
the meaning of section 1, 42-43 Vict. c. 4 (Quebec), and, not being
obliged to do so, I willingly refrain. I may say, however, that in
the interpi-etation of a penal statute I do not feel justified in going
beyond the express meaning of the Act. But it appears to me that
the complaint is clearly within the Act, whether the complaint be

SUPUKME COURT OF CANADA.

241

to the
le sale of
lies. It
md con-
iiid that

restric-
ipellant
[greater

m\ the

kd is all

in as to

It being

that in

going

le that

lint be

well ur ill expressed, and therefore I do iKjt think tlmt the Recorder
Clin be uiteifered witli on prohibition.

[The reuiiiinder of tlie judgment is occupied in discussing the
(question of prohibition.]

[Tr<nixla{>,i:]
DoRioN, C. J. : —

[;}4"2] The ai)pellant has been prosecuted before the Recorder of
the City of Quebec, under the statute of Quebec, 42-43 Vict. c. 4,
s. 1, for not having closed during the whole of Sunday, the 18th
of January, IBSo, tlie house in which he solil spirituous li(juorH.

On this priisecution ho has pleailed that the Recoider had no
jurisdiction, because the statute relied on did not authorize such a
prosecution as the present, and, secondly, because the statute was
ultra vires, and that the regulation and restraint of the sale of li(|Uor
came within the exclusive juri3clictif)n of the Dominion Parliament.

This defence has been overruled and the defendant sentenced to
pay a fine of §40.

He has moved for a writ of prohibition to restrain the Recorder
from enforcing this judgment, and, on the merits, the Superior
Court has afhrmed the judgment of the Recorder and refused the
prohil)ition.

The appellant has appealed from this judgment.

Two questions are submitted to us :

1. Is the statute 42-43 Vict. c. 4 unconstitutional ?

2. If the statute is not nltra vires, do the facts stated in the com-
plaint support a prosecution under this statute ?

As regards the first iioiut, I should be disposed to say that the
words "trade and commerce," in sub-s. 2 of a. 91 of the B. N. A.
Act should not be interpreted in the widest sense and as embracing
[343] all traile and commerce vvhatever, even the most insignificant
matters of local commerce, and that, in this view, the statute of
(Quebec, though restraining to some extent the trade in intoxicating
li([Uors, is not ultra vins. But we are all agreed in saying that it is
not necessary to decide this question in the present case. The
statute under consideration has not been passed to regulate the sale
(if liquors. It is a police measure adopted for the preservation of
good order and the public peace. This is a matter merely local, and
which as such is subject to the authority of the Provincial Legis-
litures under sub-s. 16 of s. 92 of the Constitutional Act. This
ipiestion has already been decided several times in the Province of
16

18H1 «

POLI.IN

("iiUPOKATrON

or <^i-KBh;o.

<,».B., (Quebec.

Riuiisiiy, J.

242

SUFUKME COURT OF CANADA.

'ffilDH

1880

POIUN

CoKPOUATldN'

OF (^tKBK( .

Dfiri"!), C..I.

lliH

Oiitiirit), and, ainoiigst others, in tho case of liiij, v. 'L'<i\jh>r{\.) in tlii;
Court of Quoon'a Honch. Tli»>t Court has decitlcd " tliat thu restric-
tion imposed by tliu Ontario Legislatun; on brewers not to sell l.y
retail, as doHn<nl by the Act of 1874, is not \dtra nrrn, because it is :i
mere rein-lition and renewal of tlie le^islaticm wliicli wu" in forcf
before and at the time of the Confederation." And further " that
the Ontario Lcqislature has a right to license or prohibit the sale of
li(iuors in shops and taverns and in other places of the like kind, be-
cause it has the exclusive power over munieijial in.stitutions,and these
institutions had before and at thetimeof Confederation tho exercise
of these powers, and because such power, read in connection with
s. 92, sub-s. 10, of the Confederation A(;t, is now a matter of ' a
meiely local or private nature in the Province.' That power is in
restraint of trade as well as a matter of police. The general regu-
lation of trade and commerce, which is vested in tho Dominion
Government, must be considered to be modified by the powers
which the Legislature of Ontario, acting in relation to municipal
institutions, may properly exercise."

The same tribunal has also decided, in the case of Slavinv. Tlir
Corporation of the Villarje of Orillut (2), that " by-laws passed by
municipal corporations wholly pndiibiting the sale of spirituous
li(juors in shops and places other than houses of public entertain-
ment, and limiting the number of tavern licenses to nine, were valid
as being within the power of the corporation under 32 Vict. c. 32, O.,
and that it was within the authority of the Provincial Legislatun-
to confer such power."

[344] Like decisions have also been given in the cases lit »(
Thouuts Arkell and The Corporation of the Town of St. Thomas (3),
and In re Thomas Brodie and The Corporation of the Toiot of Bo if-
manville (4).

The second (juestion presents more difficulty.

[The remainder of the judgment is occupied with the considera-
tion of the second point. The Chief Justice was of opinion that the
intention of tho Act was to make two distinct offences.

[Cross and Baby, JJ., did not deliver any separate judgments]

<l) 36 U.C.Q.B. 183. (2) 36 U.C.Q.B. 159 ; ante, vol. 1, [>. 688.

(3) 38 U.C.Q.B. 594. (4) 38 U.C.Q.B. 580.

Sl'PllKME COURT OF CANADA.

24M

SUPREME COURT OF CANADA.

The Queddy Rivkr Duivino Boom Co.,

ton L. L. Bevan

! Queddy Rivkr Duivino Boom Co., \

ND Hugh R. Robertson and Lamr- V Aiypellant:! ;

AN'f>

1888

Feb. i.v;, i^r ;
May I.

William Davidson ... Jiespondevf.

On Apjienl from the t'iup.emo Cmut of Kcu- Brtm^irirk.

[lieimied 10 Cmt. S. C. 11. ^\'J.]

Navigation and Hhippin<j — ^5 Vict. c. 100 (N. B.)

A Provincial Legi.slature may incorporate a boom company, but
cannot confer up(jn the company power to obstruct the naviga-
tion of a tidal and navigable river, (Taschereau, J., doubting),

MrMiU(()k V. South-West Boom CjmpaH\) (1), overruled in part.

Appeal trom a judgment of the Supreme Court of New
Brunswick (2).

The plaintiff in this case filed a bill for an injunction
to restrain the defendants from erecting and maintain-
ing piers and booms in the Queddy River, and alleged
that by erecting the said piers and booms and filling the
stream with logs, the said plaintiff was prevented for a
length of time from having access to the shore and using
the stream for the purposes of navigation.

This coming on for argument on demurrer, it was [228]
agreed that the only question that should be raised upon
the argument should be the authority of the Provincial
Legislature under the provisions of the B. N. A. Act,

'Present :— RiTOHiK, C..T., and Sthono, Fournikr, Hknkv, Taschereau
and GwTNNK, JJ.

(1) 1 P. & B. 715 ; ante, vol 2, p. 542. (2) Post, p. 260.

mm I

\'.

■4'!. '

244

SrPHl'ME COURT OF CANADA.

1H83 1(SG7, to pass the Act incorporating tlie said Company,

ynic and to confer the powers contained therein, and tliat all

Hrivix^; Bo()M other matters stand to the liearing; and for the purpose
Com I • AN V

v.
Davidson.

.SrATKMENT.

of raising the question }-elating to the said Act the fol-
h)\ving case was agreed upon between the counsel for tli(;
res])ective parties: —

" 1. The plaintiff is tlie owner of certain lands situate
at the outlet or mouth of the Queddy River, Avhich
empties into the Bay of Fundy. The said river is situate
in the parish of St. Mai'tins, County of St. John, in the
Province of New Brunswick.

" 2. The Queddy River is a public navigable river ; thr
tide ebbs and flows for about a mile and a half from the
mouth 01 outlet ; and schooners or boats can, at the
proper time of tide, go up to the head of the tide. The
stream above the flow of the tide is and can only be used
fOi" floating and driving logs when the water permits.

" 8. The rise and fall of the tide is about thirty feet,
and at low tide the water is very low in the stream,
almost dry, and vessels can only ascend it under and at
certain states of the tide.

" 4. The said river flows through the plaintiff's land
for the distance of a mile from its mouth, he ()wnin<f the
shore on either side.

".'). The defendants, Robertson and Bevan, own or con-
trol lands at the head waters of the river adjacent there-
to, from which they cut logs and drive them down the
stream — the only practicable mode of getting them to
market.

"6. The plaintitl' also holds lamls upon the said stream,
from which, and also from his lands at the mouth of the
river, he procures his supply of logs for the use of his
mill hereinafter mentioned (U

(l)[Thi8 paragravh, thoug^K irint-
t'd ill the Ciisf as pifpiired for the

Supreme Court of Canada, isoiiiittcil
in the report.]

SUPREME COURT Of CANADA.

24-5

" 7. The defendants, the Queddy River Driving Boom i'S83

Company, are a company incorporated by an Act passed at thk

the last session of the Legislature of the Province of [22-i] i^iVivimi ijoom

Company

Davidson.

New Brunswick, intituled 'An Act to incoi'porate the
(.^tiieddy River Driving Boom Company' (1).

" S. In pursuance of and professing to act under the
powers contained in the said Act, the said Company have
eit'cted and placed ])iers and booms in the said river
attached to the shores at the places on map {i.nnexed
hereto at the points marked A, B, C, D.

" 9. These booms as erected under the Act imj)ede
navigation, but at the times when the tides serve they
a! e capable of being swung open to admit rafts passing-
down or craft up stream.

" 10. The plaintiff has erected a steam saw null on his
land at the point marked.

" 11. Without booms being placed in the river at some
point in the tide-vv^•^y near the mouth, logs driven -lowu
the stream or a great portion thereof, would escape into
the bay, and be i)ractically lost and swept out to sea.

" 12. The defendant company claim the right to erect
the piers and booms as shewn on the plan, and maintain
the same under the powers contained in the said Act, and
that the said booms are erected there in accordance with
the powers given by the said Act."

The (questions for the opinion of the Court are : —

First, can the Legislature of the Province of New
Brunswick give the powers claimed by the defendant
Company under which they have erected and maintain
the said piers and booms ?

Second, aie the acts done by the Company, as above
set out, within the powers given by the said Act.

U these cpiestions are answered in the affirmative, then

(1) 45 Vict. c. 100.

Statemknt.

R^ m

'it

24f;

.Sb'PREMK COUllT OF CANADA.

1888 judgment to be 'jfiven for the del'endants ; but if in the
Thk negative, then the deiuurver to be overiuled.
SIvingBoom " 13. It is admitted that the plaintiff has sustained such
Company <5pecia,l and particular damages by the operations of ['22'^]
Davidson. ^^\^q Company as would entitle him to an order of injunr-
Statemkxt. t^JQn restraining the proceedings of the Company and the
other defendants if the above powei's conferred by the
Act of the Legislature of New Brunswick are ultra vires."
The Supreme Court of New Brunswick delivered judg-
ment in favour of the plaintiff; and in reply to the first
question declared that the powers conferred by the Act
of the Legislature of New Brunswick upon the defendants
authorizing them to erect piers and booms and maintain
the same as stated in the special case are ultra vires and
beyond the powers of tlie Legislature of the Province of
New Brunswick ; and as to the second (juestion in the
said special case declared it was unnecessary to ansn^er it
in view of the decision upon the first question.

Mr. Weldon, Q.C., for the appellants :

It is contended for the respondents that the legislation
incorporating this comj)any is ultra vires of the Legisla-
• ture of New Brunswick, as being legislation indirectly

controlling navigation and shipping.

It cannot be disjiuted that at first sight it would so
seem, but it is submitted that it is not, Itut an exercise of
a power necessarily vested in the Legislature to carry
into effect the recpiisite legislation to incorporate this
company, being a matter within the class over which it
has legislation.

Legislation, whether of the Dominion or Pr(jvinciid
Legislatures, over certain classes or subjects falling within
the classes respectively assigned them, in order to bo
elective must, in many cases, not only apparently but
actually trench or infringe upon matters exclusively

atiun
3gisln.-
rectly

1(1 so
se of
rarry
1 this
ich it

'iuciiii
dthin
to be

y ^jut

sively

SUPREME COUKT OF CANADA.

247

1883

assigned to the other Legislature, and the power to do ,p,^g
this arises by necessary implication. The instance o^ VniiviNo^ooM
bankruptcy and insolvency is perhaps the most familiar. Company

Applying the principle laid down by Sir Montague E. i>aviiison.
[22li] Smith in delivering judgment in the eaN )f Cashing Argumknt.
V. Diipuy (1) to the classes assigned to provincial legis-
lation it would seem to be a necessary implication that
when it is necessary to render the legislation effective
and of value and benefit to the people of the Province,
or a portion of it, that it was intended to confer on it
legislative power for that purpose, even if to some extent
it apparently infringes upon classes of subjects exclusively
assigned t;. the Dominion Parliament.

Bv the 10th sub-sect, of sect. 92, local works and
undertakings, such as certain classes of railway, canal,
telegraph and other works, are, upon the principle mentio
U'niiu' xclusio est (dterius, within the power of the Local
Legislature.

Again, works of a local character, for instance, bridges
to connect the great or bye-roads and to facilitate local
conmumication through the Province and to open it up
for settlement, it must be conceded are within the legis-
lation of the provincial legislature. Many of these
bridges necessarily cross rivers within tlie iiow of the
tide below the head of navigation ; in fact many do, as
may bi' instanced upon the rivers Mowing into the l)ay of
Fundy, such as the Mus(|uash in the County of St. John,
the Petitcodiac and Menu'amcook in the County of West-
moreland — over the latter not less than tliree bridges
below the head of navigation. The biidges over the
Shediac, Cocagne, Jiuctouchc, Richibucto and Miramiclii
rivers, flowing into the (>ulf of St. Lawrence, ni'c all
below the head of navigation, many of these erected since
the 'Union, and are constructeil with draws to enable

.^1

■■EM id

HI Ml

.rW

-!■

(1) 5 App. Ca.s. 400; ante, vol. 1, p. 252.

248

SUPREME COURT OF CANADA.

Company
Davihson,
Arqiment.

1883 vessels to pass up and down, but necessarily to some
Thk extent interfere with the navigation. If the Local Legis-
Driving Boom lature have no authority to authorize such an erection or
bridge, then it would be illegal and a nuisance: Hule v.
Slfti/ighourne and Sheerness Mcdhuay Co. (1).

[227] Angell on Watercourses (2), " All hindrances to
navigation, whether by bridges or in any other manner,
without direct authority from the Legislature, are public
nuisances." Hco, also Original HajHlcpool Collieries Co.
V. Gibb (3).

If in the course of navigation a vessel injured such
bridge or boom, if illegal, no acj^ion would be maintain-
ai)le : Colchester (Mai/vr, d-c.) v. Brooke (4-).

I submit that the legislation complained of by the
respondent is legislation affecting property and civil
rights, and falls within that class: L Union St. Jacques
de Montreal v. Belisle (5).

The judgment of the judicial committee of the Privy
Council in the case of Queen Ins. Co. v. Parsons ((>)
supports the principle I am now contending for, and
ajiplying the rule there laid down, to ascertain the inten-
tion of the framers of the Act of Union, legislation (»f
the provinces prior to the union is to be looked to. The
legislation of the Province of New Brunswick (>n thi.'
subject will be found in the 3rd Vol. Public Statutes,
under the head of Boom Companies.

While it may be contended that the relation of the
Dominion to the Provinces is not in entire analogy to that
of the United States with the respective States of tlu'
Union, yet it is only in the decisions of their courts we
can find the ((uestion of conflict of legislation discussed,
and the priucijjles of (constitutional law discussed and

(1) G H. & N, 488.

(2) Sec. 555, ed. 7.
(:{) 5 Ch. ]). 712.

(4) 7 Q. B. 33!l.

(o) L. R. 6 P. C. 31 ; atitr, vol. 1, p. 03,

((>) 7 M'V- Gas. DO; (tntr, \i>\. 1, |>. 2(m.

SUPREME COURT OF CANADA.

249

expounded, and considering that from the same source as 1S83
ourselves the conmion law of oni- mother countiy, the thk
federal courts, and as a general rule the state courts, ]')„^''.'ij^^,j jjj^q^
derive their principles of jurisprudence, and also taking Comj'any
into consideration the similarity of cirumstances in each i^avid.son.
federation, it may be fairly urged that even if their Akgumf.nt.
[228] decisions are not followed in their entirety, they may
afford light and information upon these questions dis-
cussed Ijefore their courts.

In Harvifjan v. The Connecticut River Lumher Comi-
pdH'l (I), the court illustrates the regulation of rivers
tven navigable as in the analogous case of highways.
(8ee judgment delivered by Lord, J.)

After the decision in Gibbons v. Or/den (2), the ques-
tion arose before the same judges in the case of Wilson
v. The Blackbird Creek Marsh Co. (8), where the doctrine
(tf the several rights of the Congress and the State is dis-
cussed by that eminent jurist Chief Justice Marshall ;
and subse<[uentiy in the Supreme Court of the Uniteil
States in iState of Pennsylvania, v. Wheeling and Bel-
mont Bridge Co. (4), where Chief Justice Taney delivered
a dissenting opinion. See also County of Mobile v.
KlinJxdl (5).

Barker, Q.C., and Tuck, Q.C., for the respondent : —
The question involved in tliis appeal is whether the
act of the Legislature of Netv Brunswick, 45 Viot.,c. lOO,
intituled " An Act to incorporate certain persons to be
known as The Queddy River Driving and Boom Company,"'
is idtra vires, so far as it authorizes the acts done by the
(Vimpany in erecting booms and other works in the
Queddy River, oltstructing its navigation and preventing

«*U

(I) 12'J Mass., 580.
m !) Wlieaton 1.
i.;!) 2 Peters 245.

(4) 13 Howard 518.

(5) 12Utto()!)l.

ii:ila

2o0

SUPREMK COURT OF CANADA.

I'^K!

the lespondent iVotu Imving access to his lands fronting
Thk ori tlie river. The powers conferred upon the company
Umvixo J500M *o which exception is taken will be found principally in
Company j^gctions 8 and 4 of tlie Act. (6) The construction of the
works thus authorized, we contend must inteifere with

Davidson.

AlUiUMKNT.

(6) 4.5 Vict. c. 100, s. 4. " The
said ci)nii)any are also hereby eiu-
pdwered and authciri/cd from time to
time during the continuance of this
Act to put and i)hice near the mouth
of the said river, at such jilace or
|)hiceK as may be reasonably neces.
sary, any [ners and booms and things
ai)|iertaining thereto and that may
be necessary to sustain the same for
the purpose of holding and keeping
from being floated or driven against
the will of the owner or owners
thereof or of said company out to sea
my such logs, timber or lumber as
may be so floated or driven down
said river as aforesaid ; provided
always, that any such [)iers and
booms and thingsappertaining there-
to and that may be necessary to sus-
tain the same shall be so j)ut, placed
and maintained as not unavoidably
to interfere with any mill or mills,
or with any booms, piers, wharves
sluices, dams or other erections that
are now or that may hereafter be
erected at or near to the mouth of
said river for the use of or in connec-
tion with any such mill or mills.

Sect. 5. " For the purpose of ex-
ercising the powers and i)rivileges
granted to the said company by the
second, third and fourth sections of
this Act, the said company shall
have power and authoi'ity from time
to time during the (■uutinuance of
this Act, by their agents or work-
men, to enter into and upon iind hold
and occui)y for that pxu-pose any land
bordering (jn the said river or its
tributaries or near to the m<iuth
thereof that sliall l)e necessary for
the constructing, fastening, main-

taining' or ojierating the works or
up|)liaiices which they are authorized
to construct, place or '.intain by
virtue of the said last mentioned
sections of this Act, doing nu un-
necessary damage to such land ; pro-
vided always, that before the said
comjjany shall exercise the powers
given them under and by virtue of
the fourth section of this Act they
will, witli one good and substantial
security to be ajiproved of by the
Recorder of the C'ty of Saint .John,
enter into and deliver to the owner
of the land a bond in tht; sinu of
SI, 000, conditional that the obligors
mentioned in the bond shall pay the
.imount of any award made under
the sixth section of this Act in ac-
cordance with the terms f said sixth
section and of the awaixi ; provided
always also, that if there be more
than one owner "f any jiiece of said
land, the delivery of the bond to any
one of the said last mentioned owners
shall be sufficient luider the terms of
this section of this Act, and if all the
owners of any one i>iece of said land
shall be out of tlie Province at the
time of the executing any bond under
this section, then it shall be sufficient
to tile the bond in the office of the
Provincial Secretary, at which jilace
any owner of any piece of land to
which the bond refers for whom it
may be intended shall be (>ntitled to
have the same on written applica-
tion therefor; imder the terms of
this section of this Act the mort-
gagor or person entitlwl to tliee<iuity
of redemjition in the land shall be
considered the owner."

SUPREME COURT OF CANADA.

251

the public riglit of naviy^atioii, and in reference to a [229] ih83

navigable river, such as the one in question, tlie Local thk

Legislature has no power to confer the right professed to Hhivino 1'!oom

Company

Davidson.

be given by this Act.

By sect 91. of the B. N. A. Act, the right to legislate on
the subject u. navigation and shipping is given to the
Dominion Parliament ; and if the powers conferred belong-
to any of the classes of subjects in sect. 91 of that Act, or
are included in any of them, the Local Legislature has, to
tliat extent, exceeded its powers, even though the Act
may relate in other respects to some subject comprised
within sect. 92. It is contended by tlie appellants that
the Act in question relates solely to a local work and
inidertaking, and to matters of a merely local or piivate
nature, and as such conies within sect. 92 of the B. N. A.
Act. This contention cannot prevail. In the first place it
cannot be said that the construction of works, which in
their intended use necessarily take away or aliridge a
right in the public, such as tliat of navigation, is in any
sense a matter of a merely private nature, and in the
second place, any work or undertaking local in its nature
ceases to be such in the sense in which the term is used
in sect. 92 when its use or the result of its operation, m
to interfere with any right which is included in a subject-
matter within the legislative authority of tlie Dominion
Parliament. For while the latter Parliament has, by
force of the concluding clause of sect. 91, in addition to
its express powers, such an imphod legisliitive authority
over the subjects mentioned in sect. 92 as may be requisite
for complete legislation in refereiice to the subjects men-
tioned in sect. 91, there is no such implie(l authority in
the Local Legislature in reference to the classes of subjects
mentioned in sect. 91. Any such implied authority wouM
obviously lead to conflict, And it is contended that except
in the ca.ses provided for by sects. 94 and 9."> of ['2.S()]

AROUMENTr

'.9

^fplfi

252

SUPRKME COURT OF CANADA.

1883

THK
QrKDDYHlVKU

DiuviNu HooJi

POMPANY

>:
Davidwon.

Argimknt.

the B. N. A. Act, tliere is no concurrent power of legis-
lation in the two Parliaments.

The cases decided by this and other Courts in reference
to the powers of the respective Le<^dslatures, so far as
they bear on the subject under discussion, are as follows : —
Cif)/ of Frederivton v. The Queen (1) ; Ciishing v. Dupuy
(2) ; Citizens Ins. Co. v. Parsons (8) ; Russell v. The
Queen (4). See also The Queoi v. Burah (o).

Adniittinjx for the sake of artjunient that the Act in
question prima facie, as Sir Montague Smith, in the
Citizens Ins. Co. v. Parsons (3), says, falls within one of
the cla.sses of subjects enumerated in sect. 02, does it not,
or do not the powers conferred on the appellant company
fall within tlie subject of navigation, inasmucli as they
interfere with the i)ublic right in reference to it. If the
Dominion Piirliament enacted a statute simply authoriz-
ing A to enter upon and occupy the land of B, to his
entire exclusion, it could scarcely be contended that this
was not legislation a^ to the civil rights and property of
/>, and therefore ultra vires of that Parliament. Why?
Not because it in words took away B's right of enjoying
his own premises, but because that was the natural and
necessary result of acting on the authority conferred.
So in this case, the prevention of the public in the enjoy-
ment of their right of navigation and its incidents, is tlie
natural and necessary result of the use of the powers con-
ferred. The legislation, therefore, does fall within tlie
subject of navigation, and by all the authorities is void on
that account.

The Dominion Parliament in its legislation has acted

(1) 3Can. S. C. H. DOS ; ante vol 2, (4) 7 Apii. Gas. 8213; ante vol 2,

!>. 27. p. 12.

(2)5 App. Cas, 415; ante vol. 1, (5)8 App. Gas. !)04 ; /tost, .\iipen-

1). 252. di.\ 1.

(3) 7 A|ip. Gas, % ; ante vol. 1,

p. 2C5.

SUPHEMK COURT OF CANADA.

20:}

on the pi'inciplo contended fur ])y tlu; respondent, and ih83
thoiitfh this fact could in no way confer a right not given -p,,^,
by the constitution, it is a question wliicli, in such a [2.S1 | nu'ivixVlw^
case as the present, " may," as Sir Montague Snnth, at pag(.' t'oMi'.wv
116 of the case last cited, says, "properly be considered." i*\\^>"«<>n.
These statutes are numerous and refer, as will be seen, to Amn mknt.
almost every description of work wliich might interfere
in any way with the rights of the pul)lic in navigable
rivers. These statutes are as follows : — '.i'2-'.V.] Vict. c. 42;
35 Vict. c. 94; 'Mi Vict. c. Go; :]7 Vict. c. 29; 39 Vict. c.
15 ; 42 Vict. c. 9, s. 71 ; 43 Vict. c. 44 ; 43 Vict. c. 61 ;
43 Vict. c. 29, s. 2, art. 27.

The provision in the Act, sect. 22, that the works shall
not unnecessarily interfere with navigation, admits that
the right of navigation will necessarily be abridged, but
beyond that it has no bearing on the case. Who is to
judge the necessity, or how is it to be determined ? Is it
by the quantity of logs to be taken care of ? If so, then
it follows that if the quantity of logs to be boomed
re([uires the whole river to be occupied by the company's
works, the right of navigaiion is taken away altogether
and necessarily so.

Then, it was argued in the Court below that at all events
the legislation in question was good until some Act con-
Hicting with it had been passed by the Dominion Parlia-
nient, and cases decided by Courts in the United States
were cited in support of this contention.

Under the B. N. A. Act the only question that can
arise is one simply of construction, and the ])ower of
either the Dominion Parliament or a Provincial one to
legislate on any subject is defined and limited by the Act
itself, and nuist be determined by the rules of construc-
tion applicable to any other case where the meaning
of a statute is to be settled.

Weldo)i, Q.C., replied. '

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254

SUPHEME COl'llT OV CANADA.

IHHII

Ritchie, CJ. :—
PiL'VS and boi

useful on the Quedtly

Davipson.
lUtcliie, C.l.

'*7" '^^•'A^•Y' ' [^"^-] liver, may, in fact, be almost essential for the preser-
vation of logs driven down the river, to prevent their escap-
in<^- into the bay and swept out to sea. But that cannot
art'ect the legal question in this ease, which is, to which
ief^islative power, that of the Dominion Parliament or the
Assembly of New Jirunswick, belongs the right to author-
ize the obstruction by piers or booms of a public tidal
and navigable river, and thereby injuriously interfere
with and altridge the public right of navigation in such
tidal navigal)le waters. It is Jiot disputed that this legis-
lation interfered with the navigation of tlie rivei*, indeed
this appeal's clearly from the language of the Act itself
which says (1): " It shall be the dut}' of the said company
to place and maintain all their works upon the said river
in such a way as not to unnecessarily interfere with the
navigation of the same."

T think there can be no doubt that the legislative con-
trol of navigable waters, such as are in question in this
case, belongs exclusively to the Donunion Parliament.
Everything connected wdth navigation and shipping
seems to have been carefully confided to the Dominion
Parliament, by the B, N. A. Act. Thus, in addition to
" navigation and shi{)ping," gener-dly, we have " beacons,
buoys, lighthouses, and Sable Island ; " then we have
" quarantine, and the establishment and maintenance of
marine hospitals;" and lastly we have in the list of pro-
vincial public works and properties which are to become
the property of Canada, "canals with lands and water
power connected therewith," "public harbours," "light-
houses and piers, and Sable Island," " steamboats, dredges
and public vessels " and " rivers and lake improvements."

(1) 45 Vict. c. 100, s. 22.

• ! •:<!

SUPRKME COURT OF CANADA.

All th

•licato

jleavly that tli

2oo

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18.s;»

IS seems
"navigation and snipping are to do read m no rcstneted
sense. The question of the interference with tlie naviga- '/,'
tion of pul)lic tidal waters is by no means matter of purely <'"^'i\^v
local or private ccmcern, it aitects the shipping of [2-i'.i] "'^^'""'"^'
the Dominion generally, as imleed also foreign as well as l»itfliie, C.
domestic ; and, therefore, in view of the general scop(^ of
the Act, legitimately belongs to the Dominion Parliament
rather than the Local Legislatures.

The objects of incorporation of companies with power
to interrupt, impede, or abridge the rights of foi'cign or
domestic shipping in the navigation of any of the tidal
navigable waters (if the Dominion cannot be said to be
provincial any more than the works and undertakings
under such powei's can be called local ; on the contrary,
though the corporation may be private, the object to be
accomplished affects the public as well within as without
the Province.

But if the objects of the incorporation conld strictly
speaking be called provincial, or the works and under-
takings local if thereby navigation and shipping, and
the legislative powers conferred on the J)ominion Parlia-
ment are interfered with, then liy virtue of the latter
clause of sect. 91, they are not to be matters coming
Avithin the class of matters of a local or private nature,
comprised in the enumeration of the clas,ses of subjects
assigned exclusively to the Legislatures of the Provinces.

If the Provincial Legislature can authorize the obstruc-
tion of the navigable tidal waters at the mouth of the
Queddy River, why may thej^ not do the same at the
mouth of the other large rivers of the Dominion, as in
New Brunswick the mouth of the St. John, at the head
of the St. John harbour, and so prevent or impede the free
navigation of that great river by the numerous steam-
boats, wood boats and seagoing craft that daily navigate

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256

SUPREME COURT OF CANADA.

1W3 from the sea to tSt. John, ami from St. Jolin and Indian
The Town to Fredericton, or tliat large and important river
iJamNoBooM ^^ii'^^i'^chi, navigateil for miles from its mouth by sea-
CoMPANY j^.j^jj^^, ^i^j^jy ^,, |.|jy towns of Chatham and Newcastle ? [284]
Davidson, ^^nd if they have the riy,ht to interfere with and abridgfe
Ritchie^ C.r. the rights of navigation, why should they not be able to
authorize total obstructions ? for, if they can authorize
partial obstructions, I can see no reason why they might
not authorize obstructions which would render any navi-
gation impossible, the question not being one of degree,
but whether they can or cannot interfere at all.

And these views are, in my opinion, strictly in accord-
ance with the principles heretofore enunciated in this
court, and sustained by the Judicial Committee of the
Privy Council.

I think, therefore, this appeal must be dismissed with
costs.

■

lit

SruoNti, J. : —

There cannot, in my judgment, be any doubt as to
the correctness of the decision of the court below, and
I should have been prepared to have dismissed the
appeal without hearing counsel for the respondent. The
Queddj^ River is shewn to be a navigable tidal river, and
the appellants have obstructed the navigation, and thus
committed an act which is i>r[mn f((cle a public nuisance
anrl whicli the respondent shews to be specially injurious
to him as a riparian proprietor. The responilent was
therefore entitled to an injunction to restrain the continu-
ance of the obstruction, unless the appellants were able to
shew some legal justification for the interference with
the navigation of the river, caused by the construction
and maintenance of these booms. They, however, shew
nothing but an Act of the Provincial Legislature of
New Brunswick incorporating them as a Boom Company

Sl'l'REME COURT OF (ANA DA.

257

l.S«3

(which so far was entirely within the powers of tliat
Legislature), and which also assumed to confer power ■y^^^
upon the company so incorporated to obstruct the [2.So] V>'kiun«Boom
Uiivlgation of the Queddy River. The powers so conferred * «^i'J*a.nv
are, in uiy opinion, in excess of the authority given to i'-^\H»aoN.
Lucal Legislatures by the H. N. A. Act. This is a eon- strong,.),
cbision which requires no elaboration of argumentation
for its demonstration, for no one can ileny that by sub-
sect. 10 of sect. 91 of the B. N. A. Act, exclusive power
to legislate respecting navigation is conferred on the Par-
liament of Cimaila, and as little is it open to any one t<j
dispute that this jxnver respecting navigation includes
the exclusive right to legislate so as to authorize an
obstruction in a navigaljle [lublic lixci- where the tide
ebbs and liows. A mucli h>ss distinct power given by
the United States Constitution to Congress to legislate
respecting inter-state connnerce, has, as is well known,
been held to include the power to eontrol the use of
navigable waters on which inter-state connnerce is carried
on. And the powerful reasoning of the great judges who
decided these cases, would, if there could be any doubt
upon the point now presented, be conclusive in the pre-
sent case.

Even if the provisions in sub-sect. lO of sect. Ul had
been omitted, I should have thought that the authority
of the Wheel nil/ d- Itelniont Bridge Cvmpanif Cui^e (I)
would have been suHicient to shew that under suV)-sect. 2,
giving Parnament power to regulate traije and connnerce,
tlui Act of the New Brunswick Legislature in question
here would have l)een an encroachment on these exclusive
powers of the Dominion, and so void.

For these reasons, which are substantiall}' the same as
those assigned by the Chief Justice for the same conclu-

I 'i»i

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SUPItKME COURT UK CANADA.

ihm;< sion, I concur in the disposition of this appe;il which h;is

Thk hpon proposed,
(^i Kiii'vKivK.i;

DlUVlNt; BnoNi
C<1MPANY

V.
1)AVI|i«ON.

FdUHNIEK, J., concurred.

strong. J. ['2'M]] Henry, J. :—

I t'ntindy concur in the views expres.sed hy the ('hi<>f
Justice and my learned brother Stron;^. The Legishitiire
of New Brunswici\, of course, hnd the power to incor-
porate the company for a local object, but the (juestion i->
raised here whether they had the right to confer on the
company so incorporated the right to place oVi.stiuctions
in tidal navigable waters. My opinion is, that under tlie
constitution they have no such right. If a Local Legis-
lature could interfere to the extent of one quarter of a
mile in tidal water, they might interfei-e to the extent of
a mile, and there would be no limit. The mai'itime Prov-
inces are so situated that the iidialjitants on one .side of
the Bay of Fundy are entitled to navigate the other side,
and rice rt'i'sa. If one Province, therefore, liad the right
to interfere with navigable tidal waters tliey would inter-
fere with the rights of tlie other Province. I do not
undertake to .say whether that power is inherent in tlic
Dominion Parliament either. There may be cases even
in which the Donn'nion Parliament could l)e restrained.
There are certain rights of fisheries which are common,
not only to the Province in which they are, but to all th<'
British public and some foreigners, and if the right i-.
conceded to a Province to interfere v/ith navigable waters
by allowing companies to place obstructions in them,
they might largely interfere with rights outside of the
Province altogether. I have no doubt the Local Lejjisia-
ture does not possess that power, it has ordy the powei-
given to it under the Confederation Act, which gives
them no power to interfere with tidal waters. The whole

SUI'HEME t'OUUT OF CANADA.

2:>9

1883

power ot' the Local Legislature is sheWTi to Ite restricted.

TJiey have the pow<;r of organizing companies for local thk

ol»ject,s alone, but it niu.st lie taken into consideration that imuving h^'Im

these local ohjccts shall not interfere with public rights '^mJ'a^v

[287] outside. T consider, therefore, under all the circum- "■^^""^"^'-

stances of the case, that the Boom Co. ha<l no authority by Htnry, •'.

tlif Act to place (jbstructions in the place they did on this

navigable river wliere the ti<le ebbed and flowed, an<l

where parties were in the haV)it of taking ve.ssels up and

down. My judgment is to di.smiss the appeal with costs,

and to confirm the judgment that was given by the court

below.

T.VSCHEHKAf, J. : —

1 will not dissent from the judgment of the majority
iii the Court, but 1 have great doubts on the (question
submitted. There are very strong f'rounils. it seems to
nie, in support of the contention that this bornn is a local
work or undertaking in the Province of New Brunswick.
Navigation and shipping are left under the control of the
Federal authority, it is true, V»ut this, under sub-sect. 1<>
of sect. 92 of B. N. A. Act does not extend to, tor instance,
a line of steamers or (ithei- ships entirely within the Pro-
vince, that is to say, plying from one part of the Province
to another part of the same Province. That would, I
presume, be a local utulertaking under the control of the
Lncal Legislature. May it not be .said that the boom in
({ue.stiou is also a local undertitking ;*

Can it be said that the incorporation of this company
was for Federal objects ? If it was for Provincial objects
was it not legally incorporated by the New Brimswick
Legislature ?

OwYNNE, J., concui red with the Chief Justice.

r.i

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260

SUPKKMK CdUUT oF CAN ADA.

lW«a

JriKfMKNT op Palmkk. J. {■efoir irlioin f/ie caiie rant'

iniitiinci') (1).

the fii.ft

ilWii!

Thk

I^ikiidyKivkk
DiiiviNO Boom

Co.MI'ANY

I.. Palmek, J. : —

This is it 8i)»'cial case. Tlie luiiterial facts as stalo i tlu-roin are a»*

Sim. C, follows: That tlie Plaintifl" is uwiier nf lauds en the sl;uio of tlit-
At'w

I'liuhswick. IJay of Fundy, on both hanks of a navigable liver, called the Quoddy
I'ahner -li 'i^ivor, fiowing into it, in wliich the tide elbs and tlo'.vs for about a
~~"~ mile, and is niiviyatod by votsels and boats when the tide is in. tlie

jilaintirt' thereby iiavinj.; aeeess to the shore of his lan<l for the
jiurpose nf tit)atiug imd landing logs and other tind)er there, and
also of bringing vessels and unloading tiieni there ; in this.stiteof
things the defendant procnri-d the passage of tlie Act t>f the (ic era!
A8s^'ndJly of New Brunswick, 45 Vict. c. 100, entitled "An Aei
to incorporate certain persons to be known as tlie Quedtly Uivti
Driving and Boom Company ;'" ar.d under puweis claimed to \>l-
given by t'l^at Act, p'aced Ijoonis across the mouth i f the said liver.
and then drove down the river large (|uantities of logy, which weii-
held by the l)iioni. tilling the same up, thereljy preventing he
plaintill' frnm navigating intu the river from the I'ay and having
acces.s to his properly V>y se i, or floating his logs and bniiber from
his land to the si-a.

It was admitted by the defendant's c uiiscl that ihe pnwcLs
attempted to be given by tlu; Act could not hv exercised with.rt
substantially and injuriously interfering with the right of naviga-
tion as it before existed on the i iver ; and so n.atevially aflected t! e
plaintitrs means of access to his property, for the purposes afore
said, sutticient to entitle him to have an injumti ii order to restrain
such interference, if the New Brunswick Legislature had no powti
to authorize the Company to interfere wi'h such navigation; aid
the coinisel agreed that the only que.-tion tliat should be arguid
before me was whether, under such c rcumstances, that Legislature
had such power. And 1 was to answer the two (jue-tittns in the
case : first. Could the Legislature of New Brunswick give the povvti
claimed by the defendant's Company, under which they erected and
maintjiined the booms .' Second, Wert the acts done by the
Company within the powers given by the Att f

(1) [The jnd^'incnt of Palmer, J. is for the hearingin t Ik; Supreme Ci nut
taken from the apiit'albook printed i>f Canada).

SITPRKMK rOFHT OF CANAOA.

261

Thfi admission of tlie counsel on tlie aigumont, that wliat tlu- IrtKi

defendants claimed to have dune, if authorized, is an ahrid;,'enicnt ■"

of tlie public right to navi<,'ate public tidal waters of the Dominion, (/iicddyHivkk
and altliougii the Ac*^^ provides by tho 22nd sect, that the works Company
authorized In- it wer.' to lie idacod so as not to unnecessarily i'

. . , , , , I>AV1I>S()N.

iuter'e e w th the navigation ; yet as nothing could be done \inder

file Act without so int rfering, and if the works professed to be ' 'JJ'' '

=" ' New

auiliorized by the Act are placed in the river, they will ne(>essarily lirnnswick.
largely interfere with tiie navigation therecit, it follows, I think. Palmer J.
tliat such Legislature has attempted to authorize tlie interference
with, altering and abridging the public right of navigation in public
tidal waters, and to s mie extent attem))ted to extinguish the public
right of navigation tli'ieiii. And the only ipiestion that remains
is, — as was admitted on t'le argument, — Whether it has power to do
s'l ' I have a clear opinion that it has not, and conseipieiitly thit
• all [larts of the Aci that attempt to confer such j»owers on the
C'lUipany are uJfni rir<s, an<l to that extent \ipid. The counsel having
inf'irmed me that an ai)peal is to be taken from my decision to the
S''.(iieme Court of Canada, no matter how I decide, and both par-
ties are anxious for a speedy judgment, I will give, shortly, s<ime of
the reasons for my opinion, not having time to go into the subject
to the length that its impoclanee would app(^ar to reipiire.

The short argument in favour of the plaintifl's contention is that
as by the !>lst sect, of the ii. N. A. Ac', sub-sect. 10, the I'arlia-
lucut of Canada is given exclusive power to legislate in relation to
ill! matters coming wit inn tiie subject of navigation and .shiijping ;
aii'l that they alone iiave such power, it being manifest that tlie
taldui away of the right t<> navigate from the public is a matter in
ivlation to navigation.

The defendants' cinu'iitioii is that th- Local Legislature js given
exclusive power to legislate with reference to pro])crtj- and civil
lights, also h)cal works and undHrtakings, and also i' corporation of
cnajianies witli Pimiiuial objects. With reference to property
and civil rights it wa.s admitted that if the subject came within any
of t';(; clfiss of subjects enumerated in the '.Ust see'., then the
Dnminioii Parliament would have exclusive po.ver : liut it was con-
teided that if it came within local works, etc , and in (U-der to
etlectually legislate on that subject, it was necessaiy to legislate to
some extent upon a subject mentioned in sect. 01, the Local I'arlia-
nient could do so unless the Federal Parliament had itself passed
Acts imonsistent with such legislation ; and it was further con-

■^ir

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.i:i;?'

K 'i'-

..l.'ii

'■JtifJ

2(32

SUPREME COURT OF CANADA,

tended that the iuturl'erencu witli navigation by a boom comi»any,
did licit come within tlie imaning of the word navigation in the
i^iKDDV KivKU 10th sub-sect, referred to ; and force was given to this contention
'* Co»u'\nv''^' ''y ^^'"^^ ^^'^8 '*'"^^ ''y ^'^''^f Justice Allen in MrMilUtn v. The Sunth-

1888

Thk

l».\vni»oN.

Sui). C,
New

:l|||iMl:

' !

i ii.

ik 1

irvnt liiiom Compuiiti, (1).

As to sub-sect. 11 of sect. 92, " The incctrporation of comi)anie8
with Provincial objects " : whenever powers were given to coniimnics
Brunswick, that do not belong to the subjects over which the provincial Parlia-
I'aluiHr .1. Jut'nt has power to legislate, it appears to iiie it cannot be said to be
a company with provincial objects ; when a company is given the
right to take away the public right of navigation, if such be a
Federal and not a provincial matter, I think such company is not a
comi>any having only Provincial objects, and therefore not within
tile 11th sub-sect, at all. The same answer may be given to the
argument upon the 10th .'siib-sect. If powers are (.(iven, that do not
belong to the Local Legislature to give, and the Federal alone can
give, then it is not local, for the concluding clause of the Olst sect,
enacts that any matter coming within any of the classes of subjects
enumerated in this the Ulst) sect, shall not be deemed to come
within any of the classes of matteisof a local or private nature,
comprised within the classes of subjects assigned exclusively to the
Provincial Legislatures. Then the only ciuestion that remains is,
tloi's the riglit to legislate in rel-ition to the public right of naviga-
tion in the navigable tidal waters of tlie Dominion come within any
of the classes of sul>ject8 mentioned in sect. 91, and notably sub-
sect. 10, the words of which are navigation and shipping ! Surely
when a LegisLture attenapts to abridge, alter or take away the
public right of navigation, that is, when a right exists for the ))ublio
to navigate ships over and upon navigable tidiil water.-, and that
right i.s abridged, altered or taken away by a law made for that
[jurpose, the making such law would be nuvking a law in relation to
navigation, and 1 should think shi|)ping also.

T(i navigate is to pass by water*, and the right to navigate, or of
navigation, is the right to pass by water, and I cannot conceive a
more certiiin exposition than to say, that when the right to pass
by water is legislated away, that the law made for that imr-
poso is a law in relation to navigation, I confess myself wholly
unable to bring my iniud to assent to the proposition of Chief
Justice Allen in MrMillnn v. The. Soxthiced Boom Compami, (1)

(1 ) IP. and B. 715 ; nnie vol, 2, p, 542.

SUI'RKMK ( oriir OF CANADA.

'2{j:\

e, or I'f

loeivf a

to pass

it pur-

wliolly
Chief

U!,, (1)

win re lie says that lio ia " incliiud to tliiiik that tiic word ' naviga- IWK*

tiiiii,' used in coiinectiuu witli 'shipping,' was not intended to havi- ~~

such a construction (to authorize the construction of booms); but, "^ueddy River
tha* it was used in the sense in which it is used in the several Acts Comp^^^y
i t' Pailianient of (4reat Britain relating to 'navi''ationand shipping.' ''•

I I.WIUSON.

and in the Act of the Parliament of (Janada, 31 v ict. cap. 58,

namely, the right to prescribe rules antl regulatiin.s tor vessels U'* •'

iiaviiiating the waters of the Dominion." 1 cannot think the w(>rd Brunswick,
has, <ir was intended to have, any audi restricted meaning eitlier in puinitr ,1.
the B. N. A. Act or the Acts that he has referred to. It api)ears to
me the 31 Vict, uses the word navigation in a wider sense, for
AitickM21 and 22 relate to placing rafts in Sorel Harbour, which is
the very subject of tlie legislation in contest in this suit ; and it
.'ippears to be more than a mere right to prescribe rules and regula-
tions for vessels navigating the waters of Canada, unless, toi's(joth,
the keeping open of the navigation for the purpose of allowing such
vessels to pass can be said lo be prescribing such ruh-s and regula-
tions ; for, if the moaning ol the word was narrowed, so as only to
mean the powers to make rules for navigating the navigable waters
(if thi' Dominion, and a person was desirous of running steambcats
and other vessels between Newcastle and a point on the MiraMiichi
river, above the Southwest Boom, and the Federal Parliament had
tlie exclusive right to roi^nlate how tlie vessels engaged sliould be
navigated in that passage, if the L'lcal Parliament by incorporating
a Boom Company could take away such right of navigation by
authorizing a boom across the river, and tilling the river for miles
with logs, this it appears to me would be entirely inconsistent with
tlie power of the Federal Parliauient so to regulate. This being my
view, 1 do not think I t)Ught to consider myself bound by what is
stated in that case ; it not being necessary for the decision of it, and
therefore, obiter dictum. And as I know that it is intendetl to
iippeal this case to the Supreme Court of Canada, 1 think the par
ties are entitled to have my own ojiinion, although under other
circumstances, 1 might hesitate to act on it, however strong, when
opiiosed to the views of the learnedChief Justice, for whose opinions
I have the most sincere respect.

It is claimed by the defendants' counsel that the Provincial Legis-
latures might exercise the powers mentioned in sect. 91, to some
extent, when, as in this case, the matter comes within one of the
subji its mentioned in sect. !)2, that is to say, property and civil
rights, until the Parliament of Canada had itself legislated on

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264

SUPHEMK cm RT (iF CANADA.

1n8J< thftt subject, siiineihiiij,' in tho saim wiiy as wan decidtd in <'ivi/<ji v.

r^ Kliui', fl) iniyht ho doiio I)}- a State Legiwlaturo ; but there in, I

Qi'KDDvHivKK tliink. a iiiiirkffl ilistinction botween our Cnu^titulinn and tlial of

CoMi'ANY "" L iiiteil StateH, nut only in tho rospoct pointed out l»v iiu' n

i". Tbr (huii, V. Till" Vitii of Fii'ilt'virtiiii, (2) but also in rerereuce to

Kavihsdn. ■■,'",

tlu> way the powor oi Ic^'imation is granted in the rospoctive caneit

\* w ^^ ^'"^' Anierican Constitution. Whatever power i- in the Fedei 1

Hnmswiek. Ijogislaturo was granted liy he States, thoy having the [lowor sn
I'ahnin, •!. gi'initiul before : and I am nut a\v/uv tliat words are used in tlie grant
to sliew that such |) 'Wer.s were to be exclusively exercised by tlio
Federal Legislature, and tlierefon.' such grants might not in ;dl
cases be construed to Vif an absolute i>rohiliition of all power over
tlie same subject by the State.

On this subject. Chief .lustice Ta'icy i'l tlio fjirfm^r C'l/scs, (3; says :
" It ajijiears to nn- to be very clear that the mere grant of power to
the (Jeneral (Jovernment cannot, upon any just principles of ccn-
structitm, be construed to lir jui absohit' i)rohibiti"n to the exercise
of any jtottor ovei- tin- same snbji.rt, by the States;' and on this
]n'iiKi[)le it is that, in i he ca.se of i'rniti v. Kline (I), the Legislature
of ihe State of Pennsylvania was allowed to inteifere with the right
of navigation : and the same learned .Jurist, in the case of C("</p;/ v. Tin
hitanl i>f \V(i,;l> iisiiffhi I'<irt <>/ IViiliiili'lj)l,i,i (-1), says : "The grant ,,i
power to regulate coninierce is not exclusive ; lint, the question in
each case depend^ uiion the character of the subject ; some ie((uii lUg
it to be exclusive, and others not .so." (5) On the other hand, our
Constitution being, in my ophiion, the entire creation of the V>. N. A.
.Act. neither Legislature has any power except what is conforre
on ii by that Act. -it follows that when power is claimed by eith. r
body, the grant of such power must be looked f' r by a fair con-
struction of the Act itself, and in doing this each case must ' e
decided as it arises by projierly corn-truing the language if (lio
different sections of the Act, so p.s to reconcile the powers given to
eivch Legislature, according to the intention as i.s expressed by every
word in the Act. Fnder such a Statute, I cannot see how the fact
that the Federal Parliament have or have not attempted to exerc se

1 ■ [\

II) tiSPemi. ,W.).

(2) .S V. & P.. 139.

(3) 5 Ho^^•ard .")04, 57!).

(4) 12 Howard, 2!«).

(.^) [The reiH'it in I'J Howard does

not appear to contain the words
quoted. The judgiii'^nt of the iim-
jorityof the Court, as there reported,
is stated to liave been delivered bj'
Curtis, J.]

SUPRKMK COURT OK (*ANA1>A.

lC).")

the piiwers exuliiHively given to it, could either authorize or prevent 1fW»

tht' Loyi^latuioa of the I'roviuces exercising any power-- given to '^~

them. What 1 liavu to do is to say what power is given to eaeh (^ikudy River
liOi^ishvlure l»y the fair meaning of all the words used in the Act ; Comi-'vny
and when it says that exclusive power is "ivon to one liody to legis- '•

late ui relation to a particular sunject, it is only common .sense tn

.-ay that the Imperial Parliament intended that the other body '^>M>- t-,
should have no power whatever to legislate on any matters that UmuHwick.
were fairly cominchendcd within that subject. It follows that when Palmer .J.
till! Act say.s that the Parliament of (Vnada shall liave oxclusive
power to legislate in relation in iiav gatinn— and all the cases shew,
even including the American nnes 1 have referred to, that enacting
any law affecting the public right of navigation, or of passing over
navigable waters, is legi.slating ou tl.at subject -that no other Legis-
latr e mentioned in the Act can legislate on tlie .same subject, ;ind
therefore such legislation is ultni rlrc.i of the Local Legislature.
The deniurror therefire will be over-ruled, with costs.

f^^

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ONIAHIO <'orHT OK API'KAL.

#Hi

ONTARIO COURT OF APPEAL

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<>it ii/ipeal fnnii the Ctiurt of foiniiion flea.'*,

[Heporhd (1 App. Hep. (Out.) 'W9].

litnifcniptcji (iruf' Iiisnlnnvti — Property und rirll rights — •"IS I'irt. c

Id, a. }.{(!, U.

I'lie Dominion T'iU'liainont, hy its Ins.jlvent Act of 1875, enacted
tliat any person who purchased -^'nods on ciedit, knowing or
believing himself to l)e unable to meet his en!,'agement8, and
concealing the fact with intent to dctVaud, and who does not
afterwards pay the debt, shall be lield guilty of a fraud and be
liable to imprisonment tor two years unless the debt and costs
aie soonei' paid, provided that in the suit fur the recovery of
the debt, the det'cndaTit is iharged with the fraud and declared
guilty of it by the judgment rendered in the suit. The plain-
titl's sued lor goods stdd ;ind delivered to the defendants who
afterwards became insolvent under the Act, and charged them
with fraud in the terms of the Act.

7i<7(/ by a majority of the .Judges of the Common Pleas, by two
Judges of tlie Court of Appeal, and by three Judges of the
Supreme Court (the other three giving no opinion on this
point), that the enactment is within the competence of the
Dominion Parliament.

This was an appeal from the judgment of the Court of
Common Pleas (1) in favour of the plaintifis.

The appellants' reasons of a[)peal were, that the judg-
ment of the Court of Common Picas was erroneous, and
ought to be reversed, for the following amongst other
reasons :

•Present:— SpRACiGK, C..T.O. and Bdkton, PATTEKSONandMoKKisoN, JJ.A.

(I) 31 U. C. C. r. 112.

i:!

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ONTAUIO COIKT OK AI'I'KAI,.

207

1. The all(!go<lfrau(lul«!nt act liavin^f l)oen committed in
aiiotlier country, is not cojjfnizahic in tlui (*onit,s of this
I'lovinco if it is a crime, or even if it is a mere penal ]>yi>-
ceedinj^', inasmuch as th(^ statute does not profess to include'
crimes conunittcul outside of the Dominion of Canada.

2. If the alle<,'ed fraudulent act is not a crime, then
sects. 130 and 137 of the Act are ultra vires ui the Parlia-
mejit of the Dominion, in that they assume to provide for
[040] civil procedure in Provincial Courts, wldcli is a
matter within the exclusive iurisdiction of tlie Provincial

Legislature.

The respondents' reasons against tl\o appeal were, that
the jud^nnentof the Court of Common PI .is wa.s not c o-
neous, and ought not to l)e reversed, for the following
amongs other reasons:

I. Even if the fraudulent act complained ot he a crime,
it is cognizable in the Courts of this Province, even though
it was connnitted in finother country, the said Courts
having had conferred upon them common law jurisdic-
tion by the Imjierial Parliament in 1792. The Impeiial
Parliament has power to enact that any offence against
its laws, whether connnitted within or without its domin-
ion, is a crime, an<l punishable according to its laws, when-
ever the offender is tried within its territorial limits
(Maxwell on Sttitutes, pp. 119-122, 120-7), and the Imperial
Parliament conferred upon the Dominion Parliament
eijual powers as to govei-ning those i-esident in the
Dominion. The Insolvent Act deals with " all creditors,"
barring their claims, and extetiding to them all the benefits
of the Act, .and thus does profess to include within its
provisions offences by the insolvent against his creilitors,
whether such creditors be resident within or without the
Dominion, if the redress be sought in the Courts of the
Dominion again,st the insolvent, then within the jurisdic-
tion of such Court.

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208

ONTARIO rOURT OF APPEAL.

2. If the fraudulent act is not a crime, there seems to
be no doubt it is intrd vires of the Dominion of Canada
to provide for civil procedure. In dealing with Dominion
laws the Dominion Parliament does not recognise pro-
vincial limits; it enacts foi" the Dominion as a whole
without territorial distinction, else the anomaly would
exist of its being compelled to ask the several Local
Legislatures to assist it in the administration of its own
laws. See N'tngara Election Case. (1) and Valin v.
Lanijlois (2).

[041] Befhune, Q.C., fur the appellants.

./. E. Rose, Q.C., for the respondents.

Si'HAG(;e, ( '. J. O. : —

The plaintiffs sued in the Court of Connnon Pleas,
under sect. ISO (••}) of the Insolvent Act of 1875, to
recover the value of two parcels of goods sold by the

(1) 29 U. C. C. 1'. 2G1.

(2) DApp. C.as. 11.-) ; a„t< vol 1,
p. 158.

(;<) Insolvent Act of I87.j. 38 Vict,
c. 10, ». 130: "Any person who for
liinisolf or for any firm, p.'irtiifrship
or company of which he fornl^< part,
or as the manager, t;u.-«tee, at'eiit or
employee of any person, tiiin, co-
liartnersliip or compatiy, purcha•:e^
goods on credit, or procures any
advance in money, or procures the
indorsement or acceptance of any
negotiable paper without considera-
tion, or induces any person to heconie
seciu'ity for him knowing or |lia\ ing
prohable cause for, 40 Met. c. 41, s.
30| believing himself or wuch i>ei-son,
tirin, co-pnrtner.ship or comi).'iny for
which he w acting to be unable to
meet his or its ongagenients, and con-
cealing the faet from the iHJi-son
thereby becoming jii« creditor with

the intent to defraud such person or
who by any false jiretence obtains a
term of credit for the payment of any
iwlvance or loan of money, or of the
price or any part of tlie ])rice of any
trood.s, wares or merchandise, with
intent to defraud the iier.son tliereby
Ijfcoming his creditor, or the creditor
of such jjerson, firm, co-partnership
or com])any, and who shall not aftei'-
wards have paid or caiised to be paid
the debt or debts so incurred, shall
Ije held to be guilty of a fraud, and
shall Vv liable to imprisoiunent for
such time iiK the Court may order,
not exceeding two years, unless tlie
debt and costs be sooner paid ; Pro-
vided always, that in tlie suit or
proceeding taken for the recovery (if
such debt or debts, the defendant be
charged with such fi'aud, and be
declared to be guilty of it by the
judgment rendered in such suit or
proceeding."

ONTARIO COURT OF APFKAL.

269

own

plaintiffs to the defendiints. The allegatiuns in the i«8i
second eonnt of the dcclanition are sufficient to bring the p^^,^
case within the section which I have quoted. The third yHiELDs
plea alleges that the contract out of which the alleged ^ ,,,,,

cause of action arose was made in the United Kingdom,
and not within the JJominion of Canad".. To this plea
the phiintiff demui'red ; and upon the argument of the
demurrer it was ngree'l that the jdeadings should be
amended hy alleging t'at thedefendants were traders and
British subjects, resident and domiciled in the Dominion
of Canada, at the time of the purchase of the goods in
question, and suV)sequently became insolvent under the
Insolvent Act of 1875, and amendments thereto. Judjj-
inent was given for the plaintiffs uj)on the demurrer by
the majority of the Court, the learned Chief Justice dis-
senting. The defendants liave since been allowed to [dead
that they have obtained their discharge.

The tirst ([uestion for the decision of the Court was,
whether the statute makes the obtaining of goods by a
trader afterwards becoming insolvent, under the circum-
stances stated in the declaration, a crime or offence, and
the proceedings authorized by the statute criminal pro-
cerdings for its punishment. The second (piestion was,
as put by Mr. Justice Osier in his judgment, whether this
oroceeding is a matter of civil procedure, or connected
with civil rights, and therefore ultra vircKoi the Dominion '

Legislature, or assuming that the Legislature had power
to provide machinery for the administration of the Insol-
vent Act, as a means of distributing the estate of an
|<)4<2] insolvent and giving or refusing him his discharge,
they could give a crerlitor any additional remedy for the
recovej-y of his debt.

The first question has been dealt with very elaborately
in the judgment of Mr. Justice Osier, in which he has
leviewed t ■ e cases bearing upon the point. I so entirely

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270

ONTARIO COURT OK APPEAL.

18M1

Pkkk

I'.

Shields.

.Spra^u'f, C.l.o.

agree in the conclusion at wliich he has arrived, ami in
the rea.soning by which he has reached that conclusion,
that T feel that I caunot usefully add anything to the
judgment which he has delivered.

'J'he second (|uestion re(][uires consider"^' i. The
B. N. A. Act assigns to the Provincial Legislature exclusiv^e
powers of legislation in a number of clas.ses of subjects:
among theui " Pro{)erty and Civil Rights in the Province,"
and "the Administration of Justice in the Province,
including the constitution, maintenance, and organization
of Provincial Courts, both of civil and of criminal jurisdic-
tion, and iucluding procedure in civil matters in those
Courts." Section 130 of the Insolvent Act does uncpies-
tionably touch and affect " Property and Civil Rights,"
and also procedure in a civil matter in the Courts of the
Piovinces ; but among the jjovvers of the Parliament of
the Dominion we find legislation upon " Banki'uptcy anil
Insolvency."

The observations of Sir Montague Smith, by whom tlie
judgment of their Lordshi|)s was delivered in the P>-ivy
(youncil in the case of Caslibuj v, Dwpajj, (1), are
apposite to this i)oint : " It was contended for the appellant
that the provisions of th.e Insolvency Act interfered with
propert}' and civil rights, and was tlierefore nltra vires.
This objection was very faintly urged, but it was strongly
contended that the Parliament of Canada could not take
away the right of ap|)eal to the Queen from final judg-
ments of the Court of Queen's Bench, wliich, it was .said,
was part of the procedure in civil matters exclusively
assigned to the Legislature of the Province.

" The answer to these objections is obvious. It would
be impossible to advance a step in the construction of a
[043] ."^cheme for the administration of insolvent estates
without interfering with and modifying some of the

(I) 5 Apj). Cas. 401), 41.5 ; aiitr vol. 1, p. 252.

« '

ONTARIO COURT OF Al'PKAL.

271

■ i i

iiil

onlinaiy rights of property, and other civil rights, nor
without providing some mode of special piocedure for the
vesting, realization, and distribution of the estate, and the
settlement of the liabilities of the insolvent. Procedure
must necessarily foini an essential part of any law
dealing with insolvency. It is therefore to be presumed^
indeed it is a necessary implicatiim, that the Imperial
Statute, in assigning to the Donsinion Parliament the
subjects of bankruptcy and insolvency, intended to coufei-
on it legislative power to interfere with property, civil
rights, and procedure within the Provinces, so far as a
general law relating to those subjects might affect them."
In Valiii v. Laihilois, also in the Privy Council, reported
in the same volume (1), where also the power of legis-
lation by the Dominion Parliament was brought in question,
Lord Selborne said, at p. 118 : "It is not lo be presumed
that the Legislature of the Dominion has exceeded its
] lowers, unless upon grounds really of a serious chai-acter."
1 may lie permitted to add my own view of the powers of
the Dominion and Provincial Legislatures respective!}' in
a case in the Court of Chancery: Smith v. Merchants
Bank (2). " Legislation upon property and civil rights in
tlie abstract is conmiitted to the Provincial Legislatures ;
but where they are affected only by the legislation of the
Dominion Parliament upon subjects upon which the
Parliament has express authority to legislate it camiot bo
an invasion of the functions of the Provincial Legislature
for the Parliament so to legislate. To hold otherwise
would be to nullify the powers of Parliament, not only in
its legislation upon the two subjects to which 1 have
expressly referred, but upon many other subjects which
are made expressly subjects of its jurisdicti(m ; not
[G4-4] certainly less than one-half of the twenty-ninesub-

(1) 5 App. Cas. 115; 0(1^' vol. I, p. I'jS.

(2) 2« Grant rt21t; ivitr \„\. 1, p. Hl»S.

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272

ONTARIO COURT OF APPKAL.

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jectsiii whicli oxclusive legislative authority is given to the
Dominion Parliament."

In the Niagara Election. Case (l),C,'luef Justice VVilsou
and Mr. Justice Gwynne, then in the Common Pleas, have
ver\' lucidly (if I may be piM initted to say so) explained
the relative I lowers of the Dominion and Provincial Lcis-
latures. Val'in v. Lunifloh (2), to which 1 have already
referred, is in affirmance of this judgment of our Court of
Connnon Pleas.

We must approach the consideration of this branch ot
the case before us, having regard to the principles enunci-
ated in the two cases I have referred to in the Privv
Council ; but still if in our judgment the Dominion Parlia-
ment has in this matter exceeded the authority cimferred
upon it by the B. N. A. Act, it is our duty to say so, and
to adjudge accordingly.

The power of legislation conferred upon the Dominio))
Legislature is comprehensive. A.fter the general |)ower
conferred by sect. 91, it proceeds to give exclusive legis-
lative authoi'ity, and says that it: extends to all matters
coming within the clas.ses of subjects enumerated. S<>
applying it to the subject matter in question, the authority
conferred extends to all matters coming within the terms
" Bankruptcy am' Insolvency," or, as put in the earlier
part of the section, in relation to all matters not coming
within the classes of subjects assigned to the Provincial
Legislatures, and therefore in relation to bankruptcy and
insolvency.

It cannot, I conceive, be contended that any enactment
by the Dominion Legislature making the same provision
in respect to an insolvent and his dealings with creditors
before a.ssignment or attachment, as was at the date of
the passing of the B. N. A. Act by an Act of the Imperial
Parliament in force in England in respect to bankruptcy

(1) 29 U. C. C. P. 261. (2) 5 Ajip. Caw. \\h : ontr vol. I, p. WS.

Hi;

ONTARIO COURT OF APPEAL

278

legis-
Inattei's

:d. So

,hority

earlier
joining-
Ivincial
|cy and

.'tment

)vision

leditors

Llate of

kipevial

jvuptcy

Il58.

before adjudication, would be ultra vires. I take this to
be too clear for argument. The Act in force in flngland
at that date was the Bankruptcy Act of 18G1.

Our Insolvency Acts of 1864, 1869, and 1875, were
[64.>] taken in a large measure from that Act, and it may
be from subsequent Acts, but for the purpose of the posi-
tion I am taking I confine myself to that Act. By the
10th clause of sect. 221, acts by a trader of a similar
character to those dtifined by sect. 130 of our Act are dealt
with. Section 221 makes it a misdemeanour punishable
with imprisonment for the trader to do ce tain acts, one of
these being by clause 10 defined thus : " If being a trader
he shall, within three months next before the filing of the
petition for adjudication, under the false colour and pre-
tence of carrying on business and dealing in the ordinary
course of trade, have obtained on credit from any person,
any goods or chattels with intent to defraud." It was
competent to the Dominion Legislature in legislating upon
bankruptcy or insolvency to make an enactment in the
same or the like terms or as it has done, in the terms of sect.
186 ; and if it thought fit, to annex the same jienal con-
sequences to the cununission of the act ; but surely while
dealing with the act it was not bound to annex to it the
same penal consequences.

It was an enactment falling properly within the purview
of a Bankruptcy or Insolvency Act, and provided for a case
proper to be made an exception to the other cases of the
contracting of debts by the insolvent. Can we say, in tht'
face of the comprehensive terms in which power to legis-
late upon this subject is given to the Dominion Legis-
lature, that it had not power to annex to the commission
of this fraudulent act such penal consequences, or con-
sequences not penal, as it might think fit ? It was put
in argument that the penalty prescribed by our Act is not

a necessary incident to the winding up of the estate ; that
W

1881
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1881
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Shields.
SpnHfgc, C.J.o.

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274

ONTARIO COURT OF APPEAL.

the money recovered does not go into the general estate ;
but the same may be said of the penal consequences
attached to the like fraudulent act in England. And it
may be asked who is made the judge of these things ? Is
it a Provincial Court or the Dominion Parliament ?

Then can it be said that sect. 136 cannot be carried out
without an unwarrantable interference with that which is
[646] of the exclusive function of the Provincial Legis-
lature. In my opinion it can. What are the real nature
and effect of this provision ? It deals with an insolvent
who has been brought within the jurisdiction of a Court,
the creation of the Dominion Parliament, and within the
provisions of a law which places him as one of a class upon
a different footing, as regards his property and his person,
from others of the Queen's subjects. The Legislatu? 3 had
authority to say that as to debts fraudulently contracted,
they should be dealt with in an exceptional manner ; that
as to them there should be no composition, but that they
should be payable in full ; and that as a punishment for
the fraud he should be imprisoned for two years. The
Legislature has not said quite all this, but still dealing
with it as an exceptional ca.se, because a case of fraud, it
has provided more stringent means for its recovery than
in the case of ordinary debts of the insolvent ; and after
all has dealt with it only as the Legislature of Ontario has
dealt with fraudulent debtors outside of the Insolvent
Act.

How then does this section interfere with that which is
the exclusive function of the Province, its legislation in
relation to property and civil rights ? That has been
dis[)osed of beyond a question in the judgment that I have
quoted of Sir Montague Smith. As to the Administration
of Justice in the Province, it admits of a like answer, and
this further, that only in so far as proceedings in insolvency
are a part of the Administration of Justice does it inter-

ONTARIO COURT OF APPEAL.

275

^hich is
■ttion in
been
, I have
Itration
ler, and
jlvency
It inter-

I8«l
Pkek.

Shiklds.

fere at all, and as to that its power to interfere is given by
the same authority as are the powers of Provincial Legis-
latures; and as to the constitution, maintenance, and organ-
ization of Provincial Courts, it does not interfere at all. si)ra}.^i^c.J.o.
Then does it interfere with Provincial legislation as to pro-
<!edure in civil matters in those Courts? This admits of
two answers — one that it only applies to and does not
interfere with, the procedure in civil matters — not inter-
fering at all with Provincial legislation upon that subject.
The other answer is, that Insolvent Courts are not
[647] Provincial, but Dominion Courts, constituted for the
sole purpose of administering a law of the Dominion, and
with power incident to their functions, to frame a pro-
cedure of their own or to adopt the procedure of Provincial
Courts in civil matters. And I may here notice that Sir
Montague Smith, in the passage that I have quoted from
his judgment, refers repeatedly to interference with pro-
cedure as a power intended to be conferred upon the
Dominion Legislature in matters of bankruptcy and insol-
vency, as well as power to interfere with property and
civil rights.

It appears to me to be very clear from the language that
I have quoted from the B. N. A. Act, that the Imperial
Parliament intended to confer upon the Dominion Legis-
lature full powers to legislate (inter alia) upon all matters
in relation to bankruptcy and insolvency, whether such
legislation should have the effect of interfering with pro-
perty and civil rights, or the Administration of Justice,
outside of the law relating to bankrupts and insolvents,
or with procedure in civil matters, or not. To interpret
the Act otherwise would cripple the Dominion Legislature
in the exercise of its powers, where full powers are intended
to be conveyed. In my judgement the proper construction
of the B. N. A. Act necessarily leads to the conclusion that
the power to pass such an enactment as sect. 13G was con-

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ONTARIO COURT OF APPEAL.

1881
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1 1

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i ii

ferred upon the Dominion Parliament, and the provision
of the bankruptcy laws in England, at that date, confirms
me in that opinion. I should come to that conclusion
independently of the cases in the Privy Council to which
I have referred. Those cases give the sanction of the
highest authority to the position that in my judgment is
the correct one. T cannot assume that the Dominion Parlia-
ment would, under cover of a Bankrupt or Insolvent Act,
make any enactment not. fairly falling within the scope of
those subjects. If it should do so, it would be a colourable
Act ; and if an invasion of the powers conferred upon the
Provincial Legislature, the Courts of the Province would,
I have no doubt, know how to deal with it.

[648] Burton, J. A. :—

It was admitted on l)Oth sides, on the argument,
that the broad question intended to be raised on this
appt al was whether sect. 136 of the Insolvent Act applied
in the case of a debtor, resident and domiciled in Ontario,
contracting a debt in England under the circumstances
referred to in that section as subjecting the debtor to
imprisonment if found guilty of the fraud alleged, if it had
been committed here — the debtor having subsequently
become insolvent under the Act of 1875 — and that any
amendment necessary to raise that question should be
made or considered as made. <

Whilst differing with the Court below in the reasons
given for their decision, I have arrived at the same result.

I differ from them in the view they take of the power
of the Dominion Parliament to enact the section in
question, which, for convenience, I will again repeat in
substance.

Any person who purchases goods on credit, knowing or
believing himself to be unable to meet his engagements,
and concealing the fact from the person thereby becom-

ONTARIO COURT OF APPEAL.

277

Pkkk

Shikldh.

ing his creditor with the intent to defraud such person, I88i

and who shall not afterwards have paid the debt so

incurred, shall be held to be guilty of a fraud, and shall

be liable to imprisonment for such time as the Court may Burton" J. A.

order, not exceeding two years, unless the debt and costs

be sooner paid. •

I tliink, for the reasons I shall presently give, this was
clearly beyond the power of that Legislature to enact.

Apart from the observations of Sir Montague Smith, in
delivering the judgment of the Privy Council in Cushiiig v.
Dwpiiy (1), to which we were referred, I should have sup-
posed it to be a self-evident proposition that, when the
Imperial Parliament conferred upon the Legislature of the
Dominion the exclusive power of dealing with bankruptcy
and insolvency, it followed, as a necessary implication,
that, so far as it was necessar}' for the working of any
measure passed with that object, and for providing a pro-
cedure for the vesting, realization, and distribution of an
insolvent's estate, that Legislature must have the powej-
[649] to interfere with property and civil rights and pro-
cedure within the respective Provinces.

It does not appear to me to be safe to say tliat the
Dominion Parliament would, under the powers given to
them to deal with bankruptcy and insolvency, necessarily
have authority to enact similar provisions to those to be
found in the Bankrupt Act in England at the time of the
passing of the B. N. A. Act. The Imperial Parliament
having power to deal generally with all subjects, and
having power to deal with the criminal law, no question
could possibly arise there, although the enactment might
deal with matters not coming strictly within the scope of
a law relating to bankruptcy ; but assume for the moment
tlmt the criminal law had been placed under the exclusive
jurisdiction of the Provincial Legislature, I should suppose

(I) 6 App. Cas. 409 ; arUe vol. 1, p. 252.

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1,1

1881

Pkkk

v.
Shiki.dm.

Burton, J. A,

278

ONTARIO COURT OF APPEAL.

it to be too clear for argument that the Dominion Pailia-
ment would have been confined to the enactment of such
provisions as would secure the realization and equal
distribution of the insolvent's estate, with power, no
doubt, to punish fraudulent conduct on the part of the
insolvent by the withholding of his discharge, but that it
would be clearly in excess of their powers to declare any
violation of its provisions or any fraudulent or dishonest
conduct of the insolvent a felony or misdemeanour punish-
able by imprisonment in the Provincial Penitentiary.

The Provincial Legislature would, in the case I have
supposed, have the exclusive power to say whether certain
acts, declared by the Insolvent Act of the Dominion to be
fraudulent and such as would be sufficient to prevent the
insolvent from obtaining his discharge, should also be
made criminal offences subjecting him to the risk of being
indicted and tried for them as a criminal.

The Dominion Parliament has power, however, to deal
with the criminal as well as the insolvent laws, and there-
fore one is not surprised to find that they have in many
respects followed the Imperial legislation on a similar sub-
ject, and declared many things to be misdemeanours which
are also misdemeanors in the English Act.

[650] I may say, however, that no such enactment as
sect. 130 is to be found in the Imperial Act; it is as
regards bankruptcy proceedings, .^ui generis, and I may
add seems opposed to and inconsistent with the generally
entertained idea of a Bankruptcy Act, the general scope
and object of which is to secure an equal distribution of
the debtor's effects among the creditors.

I have nothing to say against the policy of a law which
punishes with imprisonment for a certain time, or until
compensation is made to the creditor, a debtor who, hav-
ing reason to believe that he is unable to meet his engage-
ments, and concealing the fact from his creditor, obtains

ONTARIO COURT OF APPEAL.

27!>

gage-
stains

Peek

I*.
Shields.

cii'tlit with intent to defraud ; but there is no special ren- I88i
son why that should apply to an insolvent in the legal
sense of the term more than to any other person who thus
fraudulently contracts a debt and then refuses to jiay ; and BurtoiTj.A,
it seems to me, therefore, to be a matter not only not
within the general scope of an Act for the administration
of an insolvent's estate, but opposed to the spirit of such
an enactment. It is in point of fact providing an addi-
tional remedy to the creditor so defrauded for the recovery
of his debt, and so comes exclusivel}' within the power of
the Provincial Legislature.

'J'he Legislature of Canada did, it is true, before confed-
eration, by the Act of 1864, pass a similar clause, but it
was then clothed with plenaiy powers, not restricted as
the Dominion Parliament now is to legislate upon certain
subjects, and no analogy therefore is to be drawn, any
more than from the Impei'ial legislation, from their having
exercised such a power. Whether it was a matter of
bankruptcy law or a matter of procedure in the Courts of
law, that Legislature had equally power to deal with it.

And that seems to me to be tlie crucial test in this case.
If it was a mere matter of procedure in the practice of
tiie Courts of common law, the Dominion Parliament,
dealing with the question as an original piece of legisla-
tion, would have no power to enact it, and as a con-
sequence no power to repeal the section which the Parlia-
ment of the Province of Canada had thought fit to enact.
[6ol] If, on the contrary, it is a subject which comes
properly within a scheme for the realization and distribu-
tion of an insolvent estate, then the Dominion Parliament
had power to repeal the section in the former Act, and to
enact it either in its original shape, or with such modifi-
cations or amendments as they might think proper.

I agree with the observations of Mr. Justice Osier as to
the desirability of embracing in any bankruptcy law, not

' til

iiijii;

iiill:

1881
Pekk

Shiklos.
Burton, J. A

280

ONTARIO COURT OF APPEAL.

only a scheme for dividing the debtor's estate, but for
punishing dishonesty, and think it was a wise provision
to vest in the same Legislature the power to enact a
bankruptcy law, and to deal exclusively with the criminal
law. They thus possess the power to declare certain acts
to be misdemeanours in addition to the punishin>j[ the
debtor by withholding his discharge, a power which tluy
unquestionably have under the general power of dealing
with bankruptcy.

The Legislature of the Dominion has, in the Act in
question, declared certain acts to be misdemeanours, and
they have drawn a distinction between those cases and
that we are now considering. In cases of this description,
they have not made it a misdemeanour, but have contented
themselves with declaring that if the creditor sues in the
common law Courts of the Province for such a claim, and
succeeds in establishing fraud, the creditor shall have an
additional remedy for the recovery of his debt ; that is to
say, imprisonment for such a limited term as the Judge
directs, unless the debt and costs be socmer paid.

I do not at all question the dictum attributed to the
Chief Justice of the Supreme Court, in Vfdin v. Langloix
(1) on the contrary, it has my hearty concuiTonco — that
nothing contained in sub-sect. 14 of sect. 1)2 of tlie B. N. A.
Act interferes with or restiiets the right or power of the
Dominion Parliament to direct the mode of procedure to
be adopted in tho.sc cases in which that Parliament has
jurisdiction, and where it is exclusively authorized to deal
with the subject matter.

[6o2] The Insolvent Act has provided a machinery for
carrying out its provisions, and has made this the final
Court of Appeal by parties aggrieved from the deeision.s
of the Judges of first instance.

The Provincial Legislature under the powers confei'red

(1)3 Can. S. C. R. 1 ; ante vol. 1. j). 1(57.

ONTARIO COURT OF APPEAL.

281

1881

Pkbk

Hhiilds.

upon them undei- sub-sect. 14 of sect. 92, wide as they
ajipear to be, could not ot'co^.se make any alteration in
the constitution of these Courts, or in the procedure
prescribed in the Insolvent Act; but the Dominion Legis- Burt<m^J.A.
lature are equally precluded from interfering with the
procedure in the Courts which are not under their juris-
diction.

The plaintiff here is not proving upon the estate or
taking any proceedings in the Insolvent Court, but is
filing in one of the Provincial Courts. According to the
procedure of that Court, he is entitled after recovery of
jndgmen*^' to imprison the debtor in certain cases, but as
at presf 'j tidvi.sed, the local Legislature has exclusive
power to say upon wliat terms and in what cases ho shall
exercise the right to imprison the debtor.

I do not see upon what pretence this can be saitl to
come within the general scope and scheme of a Bankruptcy
Act. To my mind, it is entirely inconsistent with and
opposed to the principles of that kind of legislation, the
aim and object of such a law being to secure the assets of
the debtor for the general body of creditors.

On a prosecution i'or any of the matters declared to be
criminal otfencos under the Act, it would bo coinpetout
tor the Judge to suspend sentence with a view to the
restoration by the criminal of the property withdrawn
from the estate, but the provision in question has no such
object in view, but attempts to secure to the particular
ct iditor defrauded an adtlitional remedy, and is foreign to
the scheme of an insolvent law, and an usurpation by the
Dominion Legislature of a power to deal with a subject
exclusively within the jurisdiction of the local authorities.

But the same reasons which preclude the Dominion
Parliament from enacting such a clause apply with equal
force when we consider their right to repeal the section in
[(158] the Act of the old Parliament of Canada. 1 think

:i!i

liii

■■ (

1 1

282

ONTARIO COURT OF APPEAL.

1881
Peek

Shields.
Burton, J. A.

that section is still in force, and possibly applies to any
person, whether an insolvent or not. The proceedings are
not alleged to be under that Act, but I understood the
parties to desire our opinion upon the question generally,
and to consent to any amendment which might be neces-
sary.

We have in this view to consider Chief Justice Wilson's
objection, that although not a crime, still if a penal pro-
ceeding, the remedy could not be invoked in favour of
this creditor, because the fraud, if any, was committed
outside the limits of the Province.

If this be so, it is rather an alarming state of things,
but whilst fully conceding the rule enunciated by him
that one country cannot legislate so as to make that legis-
lation binding on another country, I fa'il to see its applica-
tion in the present case.

It does not, so far as the matter we are discussing is
concerned, become material to consider where the debt
was contracted. The alleged fraud does not aftect the
contract in the sense of making it invalid. When it was
entered into it wjus uncertain where it would be enforceil
— but all parties knew that wherever it was enforced the
laws of that country would regulate the remedy. The
creditor has to follow the debtor, and must sue him
generally where he resides, and although the lex locicon-
tradiis may be referred to for the purpose of expounding
the contract, the rules of evidence, of [)rescription, and of
practice, will be those of the country where the remedy is
being sought. Having to submit to these, which it may
be are more disadvantageous than those of his own
country, he is also entitled to such benefits as that law-
gives him, or as the matter is better stated by Lord
Teuderden, in be La Vega v. Vianna, (1) : "A person
suing in this country must take the law as he finds it ; he

(1) 1 B. & Ad. 284, 288.

ONTARIO COURT OF APPEAL.

283

1881

Peek

Shields.

cannot, by virtue of any regulation of his own countrj',
enjoy greater advantages tuan other suitors here, and he
ought not therefore to be deprived of any superior
advantage which the law of this country may confer. Burton~J.A.-
He is to have the same rights which all the subjects of
this kingdom are entitled to."

[654] In the Act for the relief of insolvent debtors
passed b}' the late Parliament of Canada, and which pro-
vided for the discharge upon certain terms of persons con-
lined for debt, is to be found a provision of this nature :

" In case it appear to the Court that the debt for which
such debtor is confined, was contracted by any manner of
fraud or breach of trust, or under false pretences, or that
such debtor wilfully contracted the debt witlxout having
had at the same time a reasonable assurance of being able
to pa}' or discharge the same, or that he is confined by
reason of any judgment in an action for breach of promise
of marriage, seduction, etc., the Court may order the
applicant to be recommitted to close custody for any period
not exceeding twelve months."

Here no option appears to be reserved to the debtor to
get rid of the imprisonment by payment of the debt, and
yet it has never been suggested that if the seduction
occurred in a foreign country, or the fraud was there
committed, that tiie Court could not make the order for
committal.

I think it is a mere matter of procedure ; the defendant
is a Canadian subject, not a stranger coming into t)ie
country and accidentally sued here, although I think that
circumstance would make no difference — the plaintiff is
here the stranger seeking his remedy in our Courts, and
is entitled to the same remedies as the inhabitants of this
Province.

I think, therefore, the appeal should be dismissed, with
costs.

Mr
I,--'

I 1

_X5

■BM

284

ONTARIO COURT OF APPEAL.

1881
Peek

Shields.
Patterson, J. A.

l\ ■

iH: i

III

I \ t

Patterson, J. A.: —

The plaintiffs sue upon the money counts, and charge
that the defendants have been guilty of fraud, within the
meaning of the Insolvent Act of 1875, by purchasing
from the plaintift's, on credit, the goods for the price of
which the action is brought, knowing or having probable
cause for believing themselves to be unable to meet their
engagements, and concealing that fact from the plaintiflfs
with the intent to defraud the plaintiffs ; and they aver
[655] that the term of credit has elapsed, and that defen-
dants have not paid or caused to be paid the debt so
incurred.

Tlie third plea of the defendant Shields alleges that the
contract, out of which the cause of action arose, was made
in England and not within the Dominion of Canada.

It is agreed that these pleadings are to be treated as
amended by alleging that the defendants were traders and
British subjects, resident and domiciled in the Dominion
of Canada, at tlie time of the purchase of the goods, and
subsequently V)ecame insolvents under the Insolvent Act
of 1875.

The memorandum of this agreeiueut does not specify
which of the added allegations arc supposed to belong to
the declaration and which to the plea. We may treat
them all as belonging to the declaration. They are
intended to complete the facts necessary, under sect. 13G,
to establish against the defendants the charge of fraud, and
the liabilitj' to "imprisonment for such time as the Court
may order, not exceeding two years, unless the debt and
costs be sooner paid."

The plea is evidently bad as in no way answering the
action for the debt, but almost in terms confessing it. It
is addressed not to the debt, but to the charge of fraud,
wliich it also admits, raising only the question whether
such a fraud, coniiuitted in England, can be piinished

ONTARIO COURT OF APPEAL.

2«5

under sect. 136, notwithstanding that it was committed
by a trader resident and domiciled in Canada, subject to
the laws of the Dominion, having, after the commission of
the fraud, been adjudged an insolvent under our statute,
and who, when he committed the fraud, knew or had
probable cause for believing himself unable to meet his
(engagements.

The plea has apparently been treated as pleaded only
to the latter part of the declaration, and it ought properly
to have been so amended as to confine it to that part.

There are no formal exceptions to the declaration ; but,
upon the demurrer to the plea the whole question has
been dealt with, including the power of the Parliament
of Canada to pass sect. 186 of the Act, and the construc-
[656] tion of that section as applying only to frauds com-
mitted within the Dominion, or to frauds wherever com-
mitted. The questions have in fact been argued as upon
a case stated, without the more regular method of stating
a case being adopted. Upon the first of these questions,
I agree with the opinion arrived at by the majority of the
Court below, from which I do not understand the Chief
Justice, who dissented upon the second question, to differ,
that the law formulated in sect. 136 is the law of this
Province, although I may reach that conclusion by a some-
what different route.

The B. N. A. Act gave to the Parliament of Canada
legislative jurisdiction over the subject of bankruptcy and
insolvency, and also over the subject of criminal law.

It would, beyond question, have been within that juris-
diction to punish as a crime the fraud described in sect,
136 ; and if an enactment of that effect had been embodied
in the Insolvent Act, it would have, in that particular,
resembled several clauses in the Imperial Bankruptcy Act,
1861, 24 & 25 Vict. c. 134, as e. g., sect. 205, which made
forgery of certain documents, &c., felony, and sect. 221,

1881
Peek

Shields
Patterson, J. A.-

■ kM

> ' .?

1881

Pkkk

1'.
Shikmis

.Patterson, J. A.

2.S6

ONTARIO COURT OF APPEAL.

\\ liich made any one of a long list of acts a misdemeanour,
if done by a bankrupt.

But I entirely agree with Mr. Justice Osier, in the rea-
soning by which he shews that sect. I3() is not to be
regarded as an addition to our criminal law, but as a
matter of procedure, or a mode of enforcing payment of
the debt. At the same time I desire not to be understood
to intimate any doubt of the propriety of regarding it, as
the Chief Justice did for the' purpose of his judgment in
the Court below, as a penal proceeding to be enforced by
or in a civil action.

1 think we are scarcely at liberty to make the ordinary
limits or the leading objects of bankruptcy law, the test
of the binding effect of the law of sect. 136.

We must remember thajb we had, in the Province of
Canada, the Insolvent Act of 1864, which was in force
[•jo7 1 when the confederation of the Provinces took place,
and that sub -sects. 7 and 8 of sect. 8 of that Act were
essentially the same as sects. 136 and 137 of the Act of 1875.

Those very provisions therefore existed, at least in the
present Provinces of Ontario and Quebec, as part of the
insolvent law, when the subject was assigned to the juris-
diction of tlie Parliament of Canada. This would, as it
strikes me, afford a strong, if not an unanswerable reason
for holding, in this Province at all events, that the re-enact-
ment of the law as it stood, or of such parts of it as the
Parliament thought proper to re-enact, was intra vires.
But it hardly becomes necessary to decide that question;
because, if the subject of sect. 136 were outside of the
subject of insolvency, it would seem to follow that the
Parliament had no power to repeal that portion of the Act
of 1864, and that consequently sub-sects. 7 and 8 of sect.
,8 are still in force. Thus the rule of law formulated by
sect. 136, whether it derives its force from the Act of 1875,
.or from that of 1864, must be the law of this Province.

ONTARIO COURT OF APPKAL.

287

eanour,

;he rea-
»t to be
(ut as a
ment of
lerstood
Qg it, as
ment in
)rcecl by

ordinary
, the test

evince of
in force
ok place,
^ct were
t of 1875.
Lst in the
trt of the
ihe juris-
luld, as it
ie reason
e-enact-
it as the
\ra vires.
question ;
ke of the
Ithat the
the Act
of sect.
[lated b)-
1 of 1875,
'rovince.

Then as to the question raised by the plea. I have been
impressed by the force of the reasons given by the Chief
Justice in the Court below for holding that the proceed-
ing under sect. 13G is a penal proceeding, and a punish-
ment for the fraud, even though not in its form a criminal
proceeding ; and that it can only apply to offences com-
mitted in this country. I have not, however, been con-
vinced that we ought on that ground to reverse the judg-
ment appealed from. It is certain that the Act treats the
proceeding as a means of enforcing payment of the debt,
as well as punitive in its character. In this respect also
sect. 63 agrees with sub-sect. 5 of .sect 9 of the Act of 1864,
when it refers to debts fraudulently contracted as debts
"for enforcing the payment of which the imprisonment of
the debtor is permitted by this Act." Having regard to
this circumstance, and to the fact that the debtor in this
case, being domiciled in the Dominion, and in this Pro-
[658] vince of the Dominion, as I think wo may assume
from his being sued here for a debt contracted abroad, was
subject to our laws when he contracted the debt, and knew
the mode provided by our law for enforcing payment of a
debt contracted as this one was, I do not see my way to
holding with sufficient clearness to justify the reversal of
the judgment of the majority of the Court below, that he
can escape from the direct efiect of the enactment by rea-
son of his fraud having been committed out of the Dom-
inion.

I therefore agree, though with some hesitation upon the
last point, that we should dismiss the appeal, with costs.

Morrison, J. A., concurred with Spraqge, C.J.O. (1).

1881

Pkrk

1'.

Shiklos

Patterson, J. A.

(1) [The judgment of the Court of
Ap|)eal was affinned in the Supreme
Court in May, 1883 (8 Can. S. C. R.
.')79). In giving judgment Ritchie,
C. J., Hay», at p. 590: "I cannot

doubt that sects. 136 and 137 of the
Insolvent Act of 1875 are intra vires
of the Dominion Parliament. " And
at p. 591 : "As to this lieing matter
of civil procedure and ultra vires as

"tA

I ( ' '!

288

ONTARIO C!OURT OF APPEAL.

Peek

Shieldh

1883 interfering with i)ro;"erty and civil

rights, what I have stated in Valin v.
Langlois(3Ca,n. S. C. R.l ; ante,\o\. 1,
p. 158), is an answer to this objection.
The right to direct the procedure in
Patterson, J. A. civil matters in the provincial courts
has reference to the procedure in
matters over which the Provincial
Le^slature has power to give them
jurisdiction, and does not in any
way interfere with or restrict tlie
right or power of the Dominion
Parliament to direct the mode of
procedure to be adopted in cases in
which the Dominion Parliament has
jurisdiction, and wiiere it has exclu-
sive authority to deal with the sub-
ject matter, as it has with the sub-
ject of bankruptcy and insolvency.
This is also the view taken by the
Privy Council in the case of Cashing
V. Dupuy (5 App. Cas. 409 ; ante,
vol. 1, p. 252). I will only add that
I am quite prepared to adopt the
conclusion arrived at by the Court
of Appeal, and to say that such a
provision as the one in question
comes fairly within the general scope
of any law relating to bankruptcy
or insolvency."

Strong, J., said, p. 593: "The
view which I take of this case does
not make it necessary to decide the
constitutional question as to the
power of Parliament to pass such

an enactment &i that in question,
limited to the territory of the Do-
minion, the opinion at which I have
arrived being formed exclusively on
the construction of the clause in
ciuestion. I may say, however, that
J have heard nothing to raise a
doubt in my mind as to the consti-
tutional validity of such an enact-
ment (provided it is construed, as
hereafter to be i^tated, as limited to
the territory of the Dominion) under
one or other of the powers conferred
on Parliament by the B. N. A. Act
of legislation as to criminal law,
bankruptcy and insolvency, or trade
and commerce, and even if this view
is incorrect, and the provision in
question cannot be considered a pro-
per exercise of any of these powers
of legislating, the opinion of Mr.
Justice Burton must then be correct,
and the similar clause in the Insol-
vent Act of 1865 be held to be still
in force. "

Fournier, J., said, p. 598: "I be-
lieve the enactment of 136th clause
is clearly within the powers of the
Federal Government, which has un-
limited power to legislate upon the
matter of insolvency. "

Henry, Taschereau and Gvirynne,
J. J., did not express any opinion on
the constitutional question.]

ih !

ONTAIUO f:OURT OF APPEAL.

289

Jan, JJ ;
Oct. 0.

ONTARIO COURT OF APPEAL.

MoNKHousE V. The Grand Trunk Railway Company. 1883

\Bep(>rtr(l 8 App. Rvp. (Out.) CSr.]

Dominion raihnrj—B. N. A. Act, a. 92, .mb-s. 10 — JfJf. V.c. 3S, 0.

Th'' Province of (Ontario passed an Act to make provision for the
safety of railway employees and the public, such jirovision
having reference to the construction and maintenance of rail-
way frogs, etc. Per Spragge, C.J., a Provincial Legislature
has no power to pass such a law with reference to a Dominion
Railway situate locally within the Province. (The other Judgts
of the Court of Appeal exi;)ressed no opinion upon the point,
being of o])inion that tlie Act was not intended to apply to
Dominion Railways, and for that reason ilid not apply to the
Dominion Railway Co. in (juestion.)

This was an appeal by the dei'enchint.s from the judg-
ment pronounced at the trial by Osier, J., dii-ecting a ver-
dict to be entered for the plaintiff for !i?L400, with costs
of suit.

The action was brought by the next friend of the plain-
tiff, who was a minor, a servant of the company, alleg-
ing that the plaintiff,

" Being a railway servant, on, etc., within this Province,
to wit, etc., personal injury was caused to him whilst in
the employment of the defendants, a railway company,
owned and operated by them in this Province, by reason
of the space between the rails in a railway frog forming
part of such railway, extending from the point of such
frog backward to where the heads of such rails are not
le«s than five inches apart, not being at all times after

Present .—Upragge, G. J. O., Hauarty, C. J., Q. B. and Burton and
Patterson, JJ.A,

nil's

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290

ONTARIO COl'RT OF AIM'KAL.

! 1

188H the lapse of three months from the passing of 'The Rail-

MoN^oisK '■'^^y Accidents Act,' 1881, 44 Viet. c. 22 (O.) and par-

^ »• ticularly on the date hereinbefore specified, filled in with

Trink Rail- packing ; and that the default occasioning the personal
ivAV Company. . . V . „ i-" r

— injury herembefore stated arose from the negligence of

ST\TKSfKNT

— _ the defendants whose servant the plaintiff then was, and
was not occasioned by the plaintiff's own act, omission or
negligence." [Claiming $3,000 damages.]

The defendants, amongst other grounds of defence, set
up that —

" They are a corporation created by the Legislature of
the United Province of- Canada before the passing of the
B. N. A. Act, and that their railway extends through two
or more Provinces of the Dominion of Canada, and that
they are under and subject in all respects and in all
matters relating to their railway to the jurisdiction and
authority of the Dominion Legislature, and not to the
[638] jurisdiction or authority of the Legislature of the
Province of Ontario, and that the said Act in the state-
ment of claim mentioned was, as therein mentioned,
passed by the said Legislature of the Province of Ontario,
and not the Parliament of the Dominion of Canada, and
that the Act only purports to apply to every railway and
railway company, in respect of which the Legislature of
Ontario has authority to enact such provisions respec-
tively, and the defendants say that for the reasons above
stated the Legislature of Ontario has, and had, when said
Act was passed, no authority to enact such provisions
respecting the railway of the defendants as in said Act
contained, and as are mentioned in said statement of
claim, and the defendants say the said Act does not ami
was not intended to apply to them or their railway."

The case came on for trial at the Toronto Winter
Assizes, 1882, without a jury, when evidence was given
clearly establishing the fact of the injury sustained by

! Rail-

i par- .

a with !

jrsonal

jnce of

as, and

ision or

nee, set

ature of
y of the
ugh two
md that
d in all
;tion and
,t to the
■e of the
[le state -
(ntioned,
Ontario,
lada, and
way and
ilature of
respec-
,ns above
hen said
Iro visions
[said Act
iment of
not ami

ay.
Winter

as given

lined by

ONIAHIO COIMtT OK API'KAL.

'1\)V

the ])laintitf", and that he was still unable to work, aii<l
would continue to be so for some time.

The learned judge at the conclusion of the evidence
made the following note or memorandum of his findings :

"I tind an Act of the Legislature of Ontario by which
the defendants are directed to pack the frogs, and the
accident has occurred entirely by reason of the defen-
ilaiits' wilful disregard of this direction. The defendants
do not propose to accept my decision as final ; and there-
fore, although my impression is that the Act in question
is ultm vires, I shall, for the purposes of the trial, and
the Judicature Act to the contrary notwithstanding, treat
the Act as in force. The damages I assess at $1,400 ;
[(539] and I direct judgment for the plaintitf for that sum,
with costs of suit, to be entered after the next sittings of
the Court of Appeal."

fiethune, Q. C, for the appeal.

Muloch, contra.

The grounds of appeal shortly were, that the del'en-
<lants' company were not subject to the provisions of the
Act of the Ontario Legislature in question : that the Act
itself was ultra vires.

Spra(;ge, C.J.O.: —

This case lies within a very narrow couipass. The short
question is, whether the Act of the Legislature of Ontario,
under which this action is brought, applies to the Grand
Trunk Railway Co. The ((uestion assumes this shape
liocause the Act itself, in terms, applies only " to every
railway and railway company in respect of which the
Legislature of Ontario has authority to enact such pro-
visions;" and the inquiry is, whether the Provincial
Legislature had authority to apply the provision of the

MdNKHOU.'F.
TllK (iltANI

rmiNK Rail-
way Com I'ANV.

SrATKMKNT.

''ii

■^4

■0

♦!1

1 ii-

if
'iilll

'■'i

• i|

2<)2

ONTARIO COUHT OF APPEAL.

I'l

i i

1883 Act un ;er -"-hich the action is brought to the defendants.
MoNKHouHK The solution of the question lies in the interpretation

Thk Grand P^'oper to be put upon sections 91 and 92 of the B. N. A.

Tri'NK Rail- a „i.
WAY Company. ^''•

„ — ' , ,, These sections have been so much considered, as well

Spreifife, C.J.O. '

— in the Privy Council as in the Supreme Court and the
Courts of this and other Provinces of the Dominion, that
it would be superfluous to examine auy portions of them
except those which bear directly upon the j>oint in ques-
tion. It will be convenient, adopting the ])rinciple of
construction pointed out in Russell v. The Queen, (1) as
the proper one, to take the tirst (juestion to be determined
to be, whether the Act, if applied to the defendants' com-
[640] pany, falls within any of the classes of subjects
enumerated in sectiori 92, and assigned exclusively to the
Legislatures of the Provinces.

It would be a nice question whether it does not fall
within the subject of " civil rights in the Provinces," it
the question rested there — if the subject dealt with by
the Provincial Act be not, if applied to the defendants'
company, assigned by the B, N. A. Act to the Dominion
Parliament.

The tirst part of the Imperial Act to be referred to is
No. 10, with its exceptions, in section 92. No. 10 assigns
to the legislation of the Provincial Legislatures, " local
works and undertakings," other than those of three
classes which are excepted. The first of these excepted
classes is, " a. Lines of steam or other ships, railways,
canals, telegraphs, and other works and undertakings
connecting the Province with any other or others of the
Provinces, or extending beyond the limits of the Pro-
vince." It is indisputable that the Grand Trunk Rail-
way of Canada falls within this excepted class.

Turning then to the introductory part of section 91 we

(1) 7 App. Cas. 829, 836 ; ante vol. 2, p. 12.

ONTARIO COURT OF AI'PKAL.

2!)8

tiiul it enacted that " the exclusive lef^i.slative authnrity l««3
of the Parliament of Canada extends to all matters coming Monkik.isk
within the classes of subjects next hereinafter enumerated ; -pug g,{ vnd
tliiit is to say." Then follows the enumeration of sub- \va'y cosi p \n v.
jeots twenty-nine in all, and the last of these, No. 29, is siiriKwiTc jo.
" Such classes oi subjects as are expressly excepted in the
^numeration of the classes of subjects by this Act assigned
exclusively to the Lejfislatures cf the Provinces."

It .nppears to me that the excepted class (a) is l>y
number 29 of section 91, as distinctly assigned to the ex-
chisive legislation of the Parliament of Canada, as are
• tlie re<;ulation of trade and commerce," the "postal
service" or any other of the classes of subjects enumerated
in section 91. The only other (piestion, if it admits of
i|uestion, is whetlier the Provincial Act under which this
action is brought would be if applied to the defendants'
company, in contravention of the legislative authority
[041] assigned to the Parliament of Canada. There is
no room to contend that the legi.slative authority is con-
current, for the language of the Act is " exclut^ive legis-
lative authority." A fair test of the legislative authority
of the Provinces w^ould be to try it by an Act applied in
terms to the defendants' company. Take the title to
this Act and its recital, mutatis mutandis, it would read
thus: "An Act to make provision for the safety of the
employees of the Grand Tiunk liaihvay Company of
Canada and the public." "Whereas, liv»iuent accidents
to railway servants and others are occasioned by the
neglect of the Grand Trunk Railway Company to provide
a lair and reasonable measure of protection against their
occurrence." Take this, followed by such enactments in
relation to the Grand Trunk Railway as are contained in
this Act, it woidd be palpably legislation in relation to a
matter, in relation to which legislative authority is
assigned exclusively to the Parliament of Canada.

Ml'

B
III.

■m

■fi 111

y^\i

'J}

2f)4

ONTARIO COritT oh" AIM'KAF..

i«H3 I ayreo in much of tho iiiircuiouH arfjunieiit tiiat lias

MoNKiioiHK ''ceti lulth'e.sHod to us by Mr. Mulock ; but, as he bases the

Thf Gu\M' plft'iiititt's case upon provincial li'i^'isl.'ition, and 1 iijtprclicnd

,'5."J17'''^..l*)!.'v necessarilv so bases it, lie boiny- a st'i'vant of the dcfcii-

Spratikft', *'.-I.<i.

4i\\i\\

I I

dants' company, it must, for the reasons tiiat 1 have given
in my jud<,nnent, fail.

The appeal should, in my opinion, Iki allowed. Tf the
learned Judge whosi' Judgment is appealed Irom lia<l
given a Judgment in accordance with iils in<lividual
opinion, it would, in my opiiuon, have been proper to
firtirm it.

BriiTON, J. A. : —

I agree in thinkino- that tlie Ontario Act was intended
to apply to those railways only which, under subsection
1(1 of section 92, are placed under their juiisdiction, viz.:
tho.se lying wholly within the Province, and not declared
by the Parliament of Canada to be for the general advan-
tage of Canada, or for the advantage of two or more
of the Provinces. That being so, tlu; point which was
mainly argued before us does not necessarily arise for
[(542 1 adjudication, and I abstain from offering any opinion
tipon it.

On the .short ground T have mentioned I think tlu^
appeal should be allowed, with costs.

Patterson, J. A. : —

I have only a few \vf rds to a<ld to what has beeti saitl
by his Lordship the Chief Justice, because I agree with
him and the other members of the Court that the appeal
must be allowed.

The statute in question, 44 Vict. c. 22, has been spoken
of as ultra vires of the Ontario Legislatui'e. Whether it
is so or not depends upon the inter{)retation which is put
upon it. It professes, in section 2, to apply its provisions

ONTAUlo ( Ol UT OF AI'l'KAL.

2!i:)

to " ovory railway mid railway company in resiuict of ihh;^
which till". Lonisiatuic of Ontario has authority to cjiaet \i

such I tio visions icspcctivcly."

Heading this literally, no (|Uc,stioii of rlres can ai'isc
Neither can such a (|Ucstion !»(> loasonahly sugi^estcil if
the enactment is undcMstood to rehite to those railways
only to which the letjislativo authority of the Province is
restricted by the exception containe<l in thc^ 10th ai'ticle
of section {)2 of the Jl N. A. Act, coupled with the 2f>th
article of section 91. But if it can be taken to contem-
plate all railways in the Province, it may well be askiid
il jurisdiction to pass the Act existed.

I do not see that the Act can l»(i properly read except
ill one of two ways : eitlu^r as intended to i^overn all rail-
ways in the Province, or as confined to those which are
not covered by the exception in ai-ticle 10. To attempt
to construe it more literally would, in my Judnfment, be
to treat it as so uncertain as to destroy its value as a piece
of ])ractical le<;'islation. Violation of its mandates or
prohibitions would be punishable by indictment ; and it
cannot be assumed that the Legislature intended to throw
upon any company the task and the risk of deciding
whether it was, or Avas not, aimed at as one with resjtect
to whicli there was authority to (aiact all or any one of
the provisions of the Act. There must be some criterion,
capable of being precisely stated, which the Legislature
[G43] must be supposed to have had in view. The lan-
guage employed in the second section shew.s that all rail-
ways were not aimed at, while the limited class is not
indicated in any other way than Ity the general reference
to th(! legislative jurisdiction. I think tlio onlv way to
give a 2^1'actical construction to this is, to understand it
as referring to the terms of the B. N. A. Act, and thus as
intended to afiect only those railways over which the
Legislature, under the 10th article of section 92, hud ex-

ONKHOl.SK

Thk (Jkand

Pkink U.ui-

wayComi'any.

l':lHl'r«llM, J. A.

1(1'

'sr

' *' I! •

'^1

■t : V

III

296

ONTARIO COURT OF APPEAL.

i ?

18''3 c us'"^e jurisdiction, because situated wholly within the
Mo\KHoi>K Province, and not declared by the Parliament of Canada
Thr Granii ^o ^^ ^^^ t^6 general advantage of Canada, or for the
Ja'^vo^u^'^Iv advantage of two or more of the Provinces.
Pattorsmi^ ,1 \ ^ wish to guard m\'self from being understood to hold
that a railway company inooiporated under the laws of
the Dominion, or coming within the exceptions in the
10th ariicle, may not be affected by provincial legislation
touching property and civil rights, or other subjects
within the jurisdiction of the Provincial Legislatures. I
merely hold that this statute, which relates to the manage-
ment and in some respects to the construction of railways,
and deals only with railways as such, applies only to a
class which does not include the company which is dof<'n-
dant in this action.

Hagautv, ('. -T., cc^neurrtd.

ONTARIO COrivl OF APPEAL

ONTARIO COURT OF APPEAL.
DoYLK V. Bell.

<.hi, appeal Jfom the Court of Common Plean,

{Reported It App. Hep. (Oid.JSm.]

Dominion Election Low — Penalties — Propevi]! and Civil Rinhta.

The jurisdiction of the Provincial Legislatures over "property and
civil rights" does not preclude the Parliament of Canada from
giving to au iiifonner the right to recover, by a civil action, a
penalty imposed as a punishment for bribery at an election.

The Dominion Elections Act, 1874, by sect. 109, provides that all
penalties and forfeitures (other than fines in cases of misde-
meanour) imposed by the Act shall be recoverable, with full costs
(if suit, by any person who will sue for the same, by action of
debt or information, in any of Her Majesty's courts in the
Province in which the cause of action arose, having competent
jurisdiction :

//('/'/, that this enactment was valid.

This was an appeal from a judgment of the Court of
Common Pleas (1), refusing to disturb a verdict recov-
ered by the plaintiff in an aoti;/a for penalties under the
Dominion Elections Act, 1874, i7 Vict. c. 9.

The statement of clann alleged that the plaintiff was a
farmer residing in the ownship of Charlotteville, etc.,
and the defendant an hoi el keeper residing in the villafy'^
of Port Dover.

On the 20th day of Jime, 1882, an election was held in
the electoral district of the South Riding of the County
of Norfolk, for choosing a member t^ serve in Parliament
for the said electoral district, pursuant to the statutes in
that behalf.

1884*
December 18.

* Present :—H.iOARTV, C.J.O., Pattkuson am, Morrison, .TJ.A., and

ROSK, J.

(1) 32 U. C. C. P. (532 ; post \ M).

21)8

ONTARIO (JOURT OK APPKAL.

ill!'

1W4

I »<1VI,K
V.

Hki.l.

SrATKMKNT.

Tlu) (l<'i'endant offered and promised moneys to one
James Burgess, a person entitled to vote at said election,
in order to induce him to refrain fVom voting at said
election, contrary to the Dominion Elections Act, 1874.

Tlie defendant tliereby became liable to forfeit the sum
of $200 to the plaintiri" who sues the defendant for the
same in this action, pursuant to the said statute.

The stat(;ment of claim also allege<l similar offers and
promises made by defendant to J. B. Evans, William
Boughner, and John Payne, persons entitl(Ml to vote at
such election, etc., an<l claiming the several penalties of
.^200 thei-efoi-.

The defemlant, by his statement of defence, denied the
allegations in the stateuKjnt of claim.

He further alleged that, from before the commencement
of the said election, until aftei- the said election was ended,
and during the Umes within wliich the acts in the state-
ment of claim referred to are charged to have been done
by the defendant, the defendant was of unsound mind, to
such a degree as to be unable to distinguish between right
and wrong.

The cause was tried before Burton, J. A., with a jury,
at Simcoe, at the Fall Assizes of 1882.

The fin<ling was that the defeiidant hai. ottered or pro-
misetl numey to two of the persons named in the state-
ment of" claim, to induce them to ref'i-ain from voting, upon
which a verdict was entered for the plaintiff, with the
penalty in each case of ^'2(){) ( 1 ).

//. J. Scott, Q. C, foi- the appellant.

Odf'r, Q. C, for the respondtmt.

Haoartv, C.J.C). : —

I thiidv this appeal should be dismissed, and the juilg-

(1 ) Tlif stiitnment hfre given is tiikoii from tlx' lleixpit in tlw Coinnidn Pleas,

;;'2 i". c. ('. P. ii:iL'.

OXTAllU) COi liT OF Al'PEAL.

■2'M)

iiient of the Coiniuoii Pleiis aliinned, for the rca.sons oixcn ihm
]»y that Court. Doyi.k

In the argmnciit liefore us a very wide proposition was bku..
advanced as governini>' thi, case, viz: tlnit tlie J)oniinion iii.j{art.v, c.j.o.
Parliament couh] not pass any Act by whicli an action of
• iebt, or anything in the nature of a civil proceeding at
suit of an individual in our Courts for the recovery or
enforcement of a penalty was created : that "civil rights "
were exclusively within the jurisdiction of the Local
Legislatures, and that the creation or enforcement of a
liability like the present trenched upon that exclusive
jurisdiction.

If this be correct, the Dominion Parliament is })ower-
less to create or enforce any civil liability to penalty or
to flamages in civil proceedings in Provincial Courts over
th(^ wide field of their legislation on tlie numerous sub-
jects entri'sted to their exclusive jui-isdiction, such as
th(^ regulation of ti-ade and commerce, navigation and
shipping, banking, customs and exc.'ise, weights and
mcasui-cs, bills of exchange and notes, bankruptcy an<l
insolvency, patents, copyright, and many others.

They cannot enact that there can be any pecuniaiy
penalty recoverable by one person against another for a
violation of anything ordered or prohibited, or that an
action will lie, or damages be recoverable, for infringe-
ment of a patent or copyright, or that lands can be
expropriated for public works, or any other right or
privilege which they have the (ixclusive I'ight to grant or
confer.

1 am wholly unpi'epared to assent to any proj)osition
so startling, or so destructive to the due and necessary
exercise of the legislative functions of the general govern-
luent. I cannot see how, in discussing legislative powers
as to "civil rights," it can be in any way m^ci^ssary to
ai'-U"' :lnt thi! i-ighl, to enfoidi a penalty at suit of an

:j.?i«

>;<:!

':-■ «

'■ 'If

■!!■■ .1
, j ■

800

ONTARIO COURT OF APPEAL.

1884

DOVLE
V.

Bkll.

Ilagarty, C.J.O,

!l=

I !

f|i|

ii;

individual, touches the adinittodly exclusive rii^ht of our
Legislature over " property and civil rights in the Pro-
vince,"

It can hardly be said that it is a civil right in the de-
fendant to commit bribery, but it is argued that a civil
right is involved in making him liable therefor to pay
money to another person in a civil action. I think this is
a strained and unnatural construction.

It was urged by Mr. Scott in his very able argument
that grant! '^ the right of Parliament to make all neces-
sary provisiu-^? '/> enforce purity of electicn, they could
have fully eftbcl ^ such purpose by their undoubted right
to enforce it by liie Criminal Law, that they might
legally effect the same object by information at suit of
the Attorney-General, and thpvpfnvo theic was no reason
for their conferring the right to sue on an individual.

T think their right to do as they have done here cannot
be measured by our view of the necessity of such a pro
ceeding. Such a power existed at and before confedera-
tion. I do not believe there is anything in the Confedera-
tion Act limiting their power on such a subject.

I am also of opinion that, granted the existence of the
power to impose the penalty, it can be properly rt cover-
able in our Courts.

Nor do I see any encroachment on the subject of civil
procedure. An action of debt for a penalty seems still
to be brought in our Courts under local statutes. We
had one before us within the last two months, and such
actions are so described in our local election law (1).

It is unnecessary to discuss the right of our Legislature
to alter or prescribe a new form or course of procedure
in our Courts for the recovery of r)enalties.

The general subject of the right of Parliament to deal
with subjects specially allotted to them by the Federa-

(1) darrrtt v. /?o/;cr«s, 10 App. Re]!. (!G0.

ONTARIO COURT OF APPEAL.

HOI

tion Act, and to enforce their enactments by civil as well IS84
as criminal proceedings in the Provincial Courts, is very Doyle
fully discussed in Valln v. Langlois (1). v,K\.h.

I think the appeal must be dismissed. nasjaity, c.j.o.

Patterson, J. A.: —

Tlie Dominion Elections Act, 1874, by sect. 92, declares
that any person offending against the pi-ovisions in
that section made against bribery shall be guilty of a
misdemeanour, and shall also be liable to forfeit the sum
of $200 to any person who shall sue for the same, with
full costs of suit. Sect. 109 provides that all penalties
and forfeitures (other than fines in cases of misdemeanoiu")
imposed by the Act shall be recoverable, with full costs
of suit, by any person who will sue for the same, by action
of debt or information, in any of Her Majesty's courts in
the Province in which the cause of action arose, having
competent jurisdiction; and, in default of payment of the
amount which the offender is condemned to pay, within
the period fixed by the court, the offender .shall be im-
prisoned in the common laol of the place for any teim
less than two years, unless such fine and costs be sooner
paid. Then sect. 110 contains some rules of pleading or
procedure " in any action or suit given by this Act."
Sect. Ill declares that "in any such civil action, suit or
proceeding as last aforesaid, the parties to the same, and
the husbands or wives of such parties respectively, shall
be competent and compellable to give evidence to the
same extent, and subject to the same exceptions, as in
other civil suits in the same Province ; but such evidence
shall not thereafter be used in any indictment or criminal
proceeding under this Act against the party or person
giving it"; and sects. 114, 115 and 116 contain furthir

(I) 3 Can. S. C. H. 1 ; 5 App. Cas. 11.') ; ante vol. 1, p. 1.58.

■'11 II

-as

^'Mt.

'.h<

"■-'■

i;l^

t I ■I'l

!i i; ,1 I

''Iff

.■M.!|

liiipl'

M '4

.S(»2

ONTAHIO ( ol ]t'f <»F Al'l'KAL,

1884

Doyle

I'.
Bkm..

Patterson, ,1.A.

mm^

1 1 ■ I

! i

hii

jMovisions on the subject of pleadiiiL"" and evicleiicf in
these actions.

This action is hrouuht to recover several sums of i^iOU
each, for its many oti'ences alleged to have been committed
by the defendant against the provisions of sect. 92. The
plaintiff recovered a verdict and judgment for two penal-
ties of $200 each, with full costs of suit.

This appeal is from the refusal of the Court of Common
Pleas to disturb the verdict or the judgment.

The only question which has been argued before us is
the very important one of the legislative jurisdiction of
the Parliament of Canada.

The ' > (.ention on the part of the defendant is that, in
giving an action to an informer to recover the penalty in
a civil '^"tiory '•^P! Parliament has overstepped the juris-
diction confer i-eti upon it by the B. N. A. Act.

One argument in support of this contention was based
upon the existence, in sect. 109 and the sections following
it to which I have alluded, of provisions touching pro-
cedure and evidence in civil actions. It was urged that
this was a clear violation of the division No. 14 of sect.
92 of the B. N. A. Act, which places amongst the classes
of subjects, in relation to which the Provincial Legislature
is given exclusive power to make laws, procedure in civil
matters in the Provincial Courts.

This position struck me as being a formidable one, and
I still think so. The action to recover a penalty by an
informer is clearly a civil action, and not a criminal pro-
ceeding. That was solemnly decided more than a century
ago in Atcheson v. EreriU{\), which was an action of the
character of the present action, to recover a penalty for
bribery, under 2 Geo. II. c. 24, s. 7; and this quality of
the action is expressly recognised in the words which I
have just read from sect. 111.

(1)1 Cowp. 382.

ONTARIO COURT OF APPEAL

m:^

But when we look attentively at the proceedin;4s before
us, it is apparent that the objection founded on sect. lO?)
and the later sections does not properly arise for decision.
The plaintiff's statement of complaint does not contain
the allegations authorized by sect. 110, "that the defendant
is indebted to him," etc.; the action does not purport to
be an " action of debt or information"; and I gather from
the judgment of the learned Judge who tried the action (1)
that he did not act upon the evidence which sect, 115
assumes to make sufficient, but required and received
other evidence of the writ and return. I notice also that
he gave judgment only for the amount of the verdict and
costs, without imposing any term of imprisonment under
sect. 109.

There is nothing before us, either in the form of the
action, or the conduct of it, or the judgment, which
requires support from anything beyond what is found in
sect. 92. That section declares the offender liable to for-
feit the sum of $200 to any person who shall sue for the
same, with full costs of suit ; and the plaintiff states his
cause of action in those terms, and asks for nothing more
than that section entitles him to ask.

The technical aspect of the (question, which we thus get
rid of, may hereafter require consideration in some action
for penalties which are not given to the infoi'mer except
by force of sect. 109 ; such, e. </., as those imposed by
sects. 47, 72, 84, and 91, and perhaps others. At present
we have to deal with the broader inquirj- whether the
jurisdiction of the Provincial Legislature over "propeity
and civil rights in the Province," assigned to it by division
No. 13 of sect. 92 of the B. N. A. Act, excludes the power
of the Parliament of Canada to give the right to an in-
former to recover, by a civil action, a penalty imi)()sed as
a punishment for bribery at an election.

18K4
Dovr.K

Rei,(..

I'iitrernon, .l,A.

(1) 32 U.C.C.P, p. 633 ; po^t p. 313.

1884
Doyle

Bell.
Patterson, .I.A.

304

ONTARIO COURT OF APPKAL.

M iv

I do not tliink this subject has been so directl}'' touclied
by any of the decisions upon the B. N. A. Act as to relieve
us from the duty of considering it on principle.

A.ny argument founded upon the inevitable interference
with property and civil rights by the parliament, in the
exercise of its exclusive legislative authority over the
large class of subjects enumerated in sect. 91, seems to
me entirely beside the present discussion ; and, without
venturing an opinion as to how far civil rights, created by
Dominion legislation, ought to be left for their enforce-
ment to the remedies and procedure provided by the Pro-
vincial Courts under Provincial laws, or how far such
remedies and procedure may be prescribed by parliament,
I think the fullest power in connection with such matters
might be conceded to the parliament, without necessarily
involving the right to give a civil action to a private
individual as a mode of punishing an offence.

The two subjects have, to my apprehension, no analogy.

We are indebted to Mr. Scott for the citation of all the
cases in which questions under the B. N. A. Act, at all
resembling those now raised, have been discussed.

One important decision which is relied on for the
plaintiff is Valin v. Langlois (1). We have a series of
able and exhaustive judgments delivered by the Judges
of the Supreme Court, to which it would be instructive
to refer ; but I prefer to confine my attention to that of
the Judicial Committee, delivered by Lord Selborne, not
because it adds materially to the others, but because the
matter is presented in one judgment only. The subject of
the decision was the power of the Parliament of Canada to
commit the trial of election petitions to Provincial Courts.
That power was affirmed on distinct grounds which I
need not stay to notice. The decision did not involve any
question similar to that now raised. The question was

(1 ) 3 Can. S. C. R. 1 ; 6 App. Gas. 115 ; ante, vol. 1, p. 158.

ONTARIO COURT OF APPEAL.

.SOo

the jurisdiction to deal in the mode adopted with the
general subject of the trial of controverted elections.
Part of the reasoning of the Lord Chancellor was founded
on the 4tst section of the B. N. A. Act, which declared
that until the Parliament of Canada should otherwise
provide, all laws in force in the several provinces at the
union, relative to certain specified matters, should respec-
tively apply to elections of members to serve in the
House of Commons for the same several provinces. If
this reasoning bears at all on the present controversy, it
is capable of being appealed to by the defendant, because
the matters specified do not include the punishment ol
corrupt practices; and Mr. Scott did so use sect. 41 in his
argument before us. On the whole, I do not regard the
case of V'alin v. Langlois (1), as very directly aiding us
at present.

I think the same observation may be made with respect
to the other decisions upon the Act, without stopping to
particularize them, with the exception ot Hodge v. The
Queen (2). The principles laid down in that case respect-
ing the construction of the power given the Provincial
Legislatures, by No. 15 of sect. 92, to impose punishment
by fine, penalty, or imprisonment, for enforcing any law
of the province made in relation to any matter coming
within any of the classes of subjects enumerated in that
section, are, in my opinion, applicable in the present case.

" Under these very general terms, ' the imposition of
punishment by imprisonment for enforcing any law,' " it
was said by Sir Barnes Peacock, " it seems to their Lord-
ships that there is imported an authoritj' to add to the
confinement or restraint in prison that which is gener-
ally incident to it ' hard labour ;' in other words, that
'imprisonment' there means restraint by confinement in

(1) 3 Can. S. C. R. 1 ; 5 App. Cas. 115; <inte, vol. 1, p. 158.

(2) y App. Gas. 117 ; ante, p. 144.
20

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800

ONTAKIO COURT OF \PPKAL.

'if«i

1884

DOTLR

Bkll.

I'attcrBon, J. A.

!!i|!!i|

I I

I Hh

a prison with or without its usual accompaniment, 'hard
labour.'"

The prevention of corrupt practices at elections is a
necessary incident of the power to rej^ulate the mode of
election of Members of Parliament. The legislative
Jurisdiction of the Dominion Parliament with respect to
election of members of that body is beyond dispute. One
exercise of that jurisdiction was the subject of the con-
test in Vidln v. Lanrjloia (1). The forfeiture of money
to be sued for and recovered by an informer, with full
costs of suit, as a punishment for bribery at elections,
has, ever since the passing of 2 Geo. II. c. 24, more than
150 years ago, been part of the system of legislation on
this subject in England. It was so in this Province
before confederation, and, as far as we are informed, was
80 in the other confederated Piovinces.

We have in these considerations abundant reason foi-
regarding the provision as a recognised if not an abso-
lutely necessary incident of the authority to deal with
the subject of elections, and one which can reasonably be
assumed to have been in the contemplation of tlie
Imperial Legislature as accompanying the right given,
whether by express teiins or by necessary implication, to
the several Provinces and to the Dominion respectively,
to regulate the election of members of their respective
legislatures.

Mr. Scott urged with force and with truth that penal-
ties of this class, inasmuch as they ditt'er from ordinary
punishment for crimes by being placed beyond the con-
trol of the Crown and removed out of the reach of the
leniency which, in proper cases, is extended to persons
who may have broken some law, are of a different class
from those of the criminal law, which is specially assigned
to the Dominion Legislature. This consideration would

(1) 5 App. Cas. 115 ; ante vol. 1, p. 158.

III!

' hard

IS is a
aocle of
islative
ipect to
B. One
le con-
money
ith full
.ections,
re than
tion on
!*rovince
led, was

sason for
n abso-
al with
lably be
of tlie
given,
ition, to
actively,
spective

penal-
Irdinary
[he con-
of the
Ipersons
it class
[ssigned
would

ONTARIO COURT OF APPEAL.

807

18»<4

1 )OV LE

Bell.

have weight it" it were necessary, in order to support the
jurisdiction, to treat the punishment in question as an
ordinary punishment for crime. But when the power
to award the puni.shment is found, not in the jurisdiction i^,ttti^,j.A.
over crimes as such, but in the authority to legislate
concerning the conduct of elections, the argument loses
its force. The question becomes one of policy rather than
of legislative jurisdiction.

But after all it may be questionable whether the crea-
tion of this right of action is properly to be regarded as
an interference with property or civil rights in the pro-
vince.

I do not propose to enter upon a discussion of the
meiuiing or extent of those words as used in sect. 92.
For our present purpose it is unnecessary to do so.

We have now the assistance of several decisions of the
Privy Council, in which the duty is enforced of reading
the B. N. A. Act, and particularly these sects. 91 and' 92,
as embodying a scheme of general legislation, and not to
be construed in a narrow sense or without reading one
part of the Act or the section with another. Amongst
these decisions are : L' Union St. Jacques de Montreal v.
Belide (1) ; Dow v. Black (2) ; Citizens Ins. Co. v. Parsons
(3); Russell v. The Qtteen (4) ; Valin v. Langlois ("j) ;
Hodge v. The Queen (6).

The principle of these decisions requires us to be
cautious before ti-eating as an encroachment upon the
legislative jurisdiction over property and civi) i^-hts,
every enactment by which a right or a liability cogniz-
able in a civil court is created.

(1) L. R. 6 P. C. 31 ; arUe vol. 1, (4) 7 App. Cas. 829; ante vol. 2,
p. 63. p. 12.

(2) L. R. 6 P. C. 272; ante vol. 1, (5) 5 App. Cas. 115; ante vol. 1,
p. 95. p. 158.

(3) 7 App. Cas. 96 ; ante vol. 1, (6) 9 App. Cas. 117 ; ante p. 144.
p. 265,

I- ' i

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808

ONTARIO COTTKT OF APPKAl..

18H4
-/— •

l>OTr,K

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PnttorHOii, ,)./..

I agree that it is proper to dismiss the appeal, with
costs.

MoRUisON, J. A., concurred.

Rose, J. : —

It clearly appeainng from the decisions in . ^^.tiv v.
Lancflois (1) and Penl' v. Shields (2), and cases therein
referred to, that, as to subjects within the exclusive juris-
diction of the Dominion Parliament, such Parliament has
the power to make such enactments as are necessary,
whether the same interfere with civil rights or not, and
also the power to provide all necessary procedure to be
adopted to enforce such rights; and it further appearing
that Local Legislatures have the right to prescribe pro-
C(?dure in civil matters only in respect of such matters as,
by the B. N. A. Act, were placed under the ey^lusive
control of the Local Legislatures, Mr, Scott was *' n to
argue that the clause providing for recovery of a , j,lty,
as sued for in this action, was not the exercise of a
necessary power, and hence ultra vi/res the Dominion
Parliament.

I do not understand by the use of the word necessary,
as found in various decisions and text books, that it is
meant to lay down the doctrine that, to bring within the
powers of the Dominion Legislature any provision of an
enactment respecting a subject within the exclusive juris-
diction of such Legislature, and which provision might
affect civil rights, it must necessarily appear that, without
such provision, it would be ivipossible to carry into effect
the intentions of the Legislature, or that probably no
other provision would be adequate. On the contrary, it
seems to me that if such provision might, under certain
circumstances, be beneficial and assist to more fully en-

(1) 3 Can. S. C, R. 1 ; ante, vol. 1, p. 158. (2) 8 Can. S. C. R. 579 ; ante, p. 266.

.11

OXTARfO COURT OF APl'KAL

809

torc<> such legislation, ilit'ii it inunt, at all events, on aa
appeal to the courts, be hold to be necessary in certain
event.s. Surely the Legislature must be allowed some,
and in my opinion a very wide, discretion as to the mode
of enfonnng its own enactments. It cannot bo that the
courts are to sit in jiidgment on the exercise of such
discretion, so as to be abh; to dictate to the Legislature
wh(;ther they sliall adopt this or that mode, because in
the opinion of the courts our mode is the more convenient
or better, or at least as well adapted to effect the pui'pose
of the Legislature.

It was not contended before us that the provision in
c|U(.'.stion might not be beneficial. It was contended,
however, tlnit criminal proceedings might accomi)lish the
same purpose,

When it appeared that a similar provision is to be found
in the legislation on this subject ])rior to confederation,
also in the legislation on the same subject in other Pro-
vinces and in Great Britain, it seemed to me the argument
as to want of necessity failed. The evidence to the con-
trary is too clear and strong to enable the court to intei"-
fere. I certairdy cannot take upon myself to declare
unnecessary what so many Legislatures have declared
necessary.

I agree that the appeal nmst be dismissed.

DoTLlv

KoH.. .).

-jii

■'hi

'ii

■;• ':

.It'DOMENT OF THE CoURT OF CoMMON PlEAS.

[Repovtedd2 U. C. C. P. 63S.]
Wilson, C. J. —

[637] There was a plea that the defendant was so intoxicated he
did not know what he was about at the time and on the occasions as
charged by the plaintifF. The motion was directed against tlie
evidence, etc., in so far as they related to tlie trial of that issue.

:!'ii

310

ONTARIO COURT OF APPEAL.

DOTLE
V,

Bell.

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1882 Tho Court intimated their opinion that upon the evidence they

could not properly interfere with the verdict upon any of the
grounds stated in the motion, and it was not much relied upon.

The constitutional objections taken are, as I understand them,
C. P., Ontario, that the Dominion Parliament had not, and has not, the power to
Wilson, C.J. alter the provisions of the 23 Vict. c. 17, s. 1, repealing the Con.

Stat. C. c. 6, s. 83, and that the 37 Vict. c. fl, a. f)2, D., so far as it

does alter them is void ; and that objection I understand to be based
upon the Confoderaticjn Act, sect. 41, which, it is said, rtstricts the
interference of the Dominion Parliament in all matters concerninc:
their own elections to such particular subjects as are mentioned in
that section.

The enactment in the Act ot'lSGO is exactly the same as the enact-
ment of sect. i)2 of the Act of 1874. By the Con. Stat. C. c. H, s.
83, the jieiialty is declared to be nut less than $20 nor more than
$200 in the discretion of the Court. The penalty is, therefore,
difierent from that contained in the Act of 1860, and so also is the
penalty, which between the limits befoi e mentioned was placed in
the discretion of the Court.

The Act of 1860 and such provisions of the Con. Stat. C. c. 6
that had not been varied by the Aot of 1860, contained the law
[638] which was in force respecting such election matters at the
time of confedei'atiun, audamongtho.se provisions not altered by the
Act of 1860 were the amount of penalty before stated, and the
amount of it between the limits last mentioned being placed in the
discretion of the Court.

As to these two points of diflerence, then, between the Consoli-
dated Act and the Act of 1874, why could the law not be altered by
the Act of 1874 ?

Tt is said because the Confederation Act, sect. 41, does not
mention these j)articular matters, and the Dominiijn Parliament
< cannot go beyond the matters e.\];res8e(l in that section.

The section enacts that " Until the Parliament of Canada other-
Avise provides, all laws in force in the several Provinces at the union
relative to tlie following matters, or any of them, namely . .
shall respectively apply to elections of members to serve in tiie
House of Commons for the same several Provinces."

Such an enactment cannot possibly be read as limiting the
legislation of the Dominion Parliament to the particular matters
enumerated in it. It is as plain as language can make it that these
enumerated matters were to remain in force until the Parliament of

ONTARIO COURT OF APPEAL.

311

1882

DOYLK
V.

Bkll.

Canada otherwise provided. It does not say tliat the Dominion
Parliament shall not have power to legislate on any other matters
relating to elections than those which were to remain in force only
for a temporary purpose.

The argument that the Dominion Parliament had not the power to C. P., Ontario,
pass the Election Act of 1874 is one of the extremest instances of Wilson, C.J.
the attempt to apply the doctrine of ultra vires and unconstitution-
ality.

The other objection is that sect 109 of the Act of 1874 directs that
penalties imposed by it should be recovered by a civil action — by
action of debt or information ; and it is contended the Dominion
Parliament had no jjower to give such a remedy, because matte*rs of
civil procedure are by sect. 92, No. 14, of the Confederation Act
vested exclusively in the Provincial Legislatures. The Nkujara
Election Case (1) disposed of that objection

I did not (juite umlerstand whether Mr. Bethune argued [G39]
that the Dominion Parliament could give no civil remedy whatever,
or that it could not prescribe the form of that civil remedy.

There can be no objection to the Parliament imposing a penalty
for a particular infraction of the election law without saying by
what means it shall be recovered, and in such a case a civil action
will lie for it, under the former law by an action of debt, and under
the present law by the ordinary remedy for the recovery of money.
So in dealing with assaults, what objection can there be to the
Dominion Parliament providing that, in certain specified cases, the
remedy shall not be bj' criminal pi'ocednre, but by a civil action for
damages. Such enactments would not be an assumption of legis-
lation beyond the power of the Dominion Parliament. They would
not be an interference with the civil procedure in the 'Provincial
Courts.'' They would be an express submission to the jurisdiction
of such Courts.

If, in addition, in the last case of the supposed assault, the Parlia-
ment enacted that, in respect of it, the complainant might adojit
the civil remedy ot trespass, it wf)uld not in my opinion be an
encroachment upon the civil procedure in the Provincial Ck-urts.

The enactment in (juestion provides that the remedy in such a
case as the prebor.t sh.".l! be by action of debt or information.

As I have said, 1 did not understand whether it was that the Act
of 1874 had appointed the particular form of remedy by action of

■m

(1) 29 U. C. C. P. 261.

III

812

ONTARIO COURT OF APPEAL.

DOY LK

I'.

Bei.1..

debt or information, or because a civil reinf^dy in any form had

been given, which formed the ground of objection. In the latter

case, we sec no kind of objection in such legislation, and in the

former, when the particular kind of remedy is named, we think the

C. P., Ontiuio. objection is in no way strengthened. The action of debt or pro-

Wilnoii, r.J. ceeclings by way of information were well known civil remedies in

~ our Courts at the time the Act was passed, and we see no objection,

as the Provincial Legislature has altered the form of proceeding in

[G40] all civil actions but in a few excepted cases— and this kind of

remedy is not within the exceptions — that the plaintiff may adopt

the new form of action in place of the former one.

This last objection was not taken on the argument, J any effect
could be given to it, and we do not think there could be.

The Act of 1874, sect. 110, declares it shall be sufficient for the
plaintiff to state in his declaration that the defendant is indebted to
the plaintiff in the sum demanded, and to allege the particular
offence for wliicli the action is brought, and that the defendant has
acted contrary to the statute.

The plaintiff has expressly stated the last two particulai-s, but not
express' y the (me that the defendant is indebted to him in the sum
demanded, unless that is sufficiently done by the allegation " where-
by the defendant became entitled to recover the sum of $200" in
each of the paragraphs of claim, and 1 think that may be held to b'
a sufficient averment of indebtedness. If it be not, an amendment
in that respect will, of course, be allowed.

The second constitutional objection to the recovery in this action,
we think, fails also.

The learned Judge who tried the action has not, under the Act
of 1874, f cot. 100, fixed the period within which the offender is to
pay the amount he has been condemned to pay, nor has he fixed
the period of imprisonment the offender is to suffer in tho common
gaol in case of non-payment of the amount he has been condemned
to pay, unless such tine and costs be sooner paid. That must, of
course, be d(me.

Wo discharge the motion, with costs.

(iALT and OsLKK, JJ., concurred.

ONTARIO OOUUT OK AI'FKA],.

Judgment ok Burton, J. A., at thk Trial.
[RtpoHed 32 U. 0. C. P. (i33.]

•MS

1882

DOYI.K
V,

Bell.

BuKTON, J. A. : —

[633] The point was taken that tlie Dominion Legishiture had no Burton, -l.A.
power to define what should be evidence, but it was urged that,
apart from the statute, evidence was receivable of the fact of the
election beijig held, and I gave permission to supply whatever might
be necess.iry ; and, since the trial, what purjjorts to be a copy of
the writ and the returning ofhcer's return have been put in.

The point was further taken, but was not aigued, that the
Dominion Legislature, so far as it professed to yive a right of suit
to iin informer to sue for a penalty by action of debt, was ultra I'ires.

I should not, under any circumstances, even if I had been aided
by argument, have assumed to decide the point when sitting at
itisi prhis; but I cannot avoid expressing the opinion that the ques-
tion is sufKciently d'oubtful to warrant action on the [lart of the
Provincial Legislature in aid of that of the Dominion, for it is
certainly desirable that this very salutary check upon corrupt prac-
tices should be pi-eserved.

I do not for a moment doubt the power of the Dominion Parlia-
ment to direct the mode of procedure to be adopted in election
[034] cases over which that Parliament has jurisdiction, and with
which it is exclusively authorized and empowered to deal ; and it
would have the right, therefore, to interfere with property and civil
rights in so far as such interference might be necessary for the pur-
pose of legislating generally, and efl'ectually on these subjects.
Tlie liglit to deal with the Dominion elections being vested in it by
sect. 41 of the B. N. A. Act, and the criminal law being also vested
in it, that Parliament has clearly the power to regulate tlie mode of
elections, and tiie trial of controverted elections, and to make cor-
rupt practices misdemeanours. This last power is, however, derived
from their having c nitrol over the criminal law. Were it other-
wise, if, for instance, the criminal law was vested exclusively in the
Provinces, their powers would be confined to the regulation of
elections, and the trial of controverted elections and the proceedings
incidental tliereto.

Tlie granting the privilege to any one to sue for a debt is, as it
appears to me, purely a civil right, not necessarily incident to elec-
tion procee<lings any more than the right to make a corrupt practice
a misdemeanour would be.

!i;

(«!

'i !

'MfA,

In!)

ii'irr

814

ONTARIO COURT OF APPEAL.

DOTLK
V.

Bull.

1882 It may be well, also, to note in this connection that the list

section, which continues existing laws until altered by the Dominion,
enumerates the matters which the Dominion Legislature may alter,
but makes no reference to those clauses relating to actions for
Burton, J. A. penalties. If, however, the Dominion Parliament has no power to
legislate on such a subject, neither had it power to repeal the exist-
ing laws, and. although that point was not presented, it is quite
possible that the action is maintainable under the statutes in force
at the time of confederation.

I give judgmer for the plaintift' for the amount recovered, and
full costs.

ONTARIO HIGH COURT OF JUSTICE— CH. D.

315

■ *'' I!

[CHANCERY DIVISION.]
Re Wetherell and Jones.

[Reported 4 Ontano Reports 71J.]

Trtkimj enidence to he. iiseil hhfurf'ujn trihinah — B. N. A. AH s. 92,
snh-sH. 13, 14, 10—31 Vkt. r. 76 {D.)

The taking of evidence to be used in an action pendnig in a foreign
tribunal is of extra Provincial pertinence, and does not fall
within the exclusive legislative authority of the Provinces ; the
Dominion Act 31 Vict. c. 76 providing for the taking of
such evidence by Provincial Coui-ts was therefore held to be
valid (1).

In this case the plaintiff' obtained an order from Proud-
foot, J., under 31 Vict. c. 70, (D) for the examination of
certain witnesses resident in Ontario, under a commission
and letters rogatoiy from the Circuit Court of Cook
County, Illinois.

On September 7th, 1883, the witnesses moved before
the learned Judge to rescind his order, taking the ground
that the Act in (juestion, which was his only authority
for making such an order, was ultra vires. The leai'ned
Judge refused the order asked, and the matter then came
up by wiiy of appeal to the Divisional Coui't on Sep-
tember 12th, 1883.

Wallace Neshitt for the appellants. The Act in question
comes within sect. 92, sub-sects. 13 and 14 of the B. N. A.
Act, under which civil rights in the Province and the
constitution of the Courts are assigned exclusively to the
Local Legislature. Before this Act the Courts had no
power to make such an order: See United States v.

1888

Sept. 15.

(1) [See Ex parte Smitk 16 L. C. Jurist 140; ante vol. 2, p. 330.]

1H«3

Kf.

Wethekkij.

AND
JONtS.

AB<niMKNT.

i'!i

816

ONTARIO HIGH COURT OF JITSTICK- f'H. D.

Denison (1). If it is now within their power by thisi
Act, it is an enlarging of the power of the (Jourt, which
can only be done by the Local Legislature. The whole
authorities turn upon the single point that the Dominion
Parliament can delegate duties to the Judges of our
Courts, or create new subject matter for oui" Court." to
deal with, providing sueh duties or subject are not assigned
[714] exclusively to the Local Legislature. This Act
assumes to grant to the Court a right not before existent
in it as a Court. It is a dealing with the constitution of
the Courts, which is a matter solely for the Local Legis-
lature. Reference was made to Cartwright's Cases under
the B. N. A. Act, vol. 1, pp. 171, 191, 19:^ 197 203, 207,
209, 212, 213, 218, 230, 257, .-)10, .515, 519. 520, 542, ()86-
735; and Taylor on Evidence, 7th ed., p. 1101.

G. H. Watsov, contra. The matter is one of inter-
national courtesy and comity, and is within the power
of the Court. Valii} v. Langlois (2), and Re Niagara
Election Case, Plumb v. Hughes (3) were referred to.

\'v

litlr

Boyd, C. :—

Section 92, sub-sect. 14, of the B. N. A. Act, relates to
" the Administiation of Justice in the Province," as to
which exclusive jurisdiction is vested in the Provincial
Legislature. The controlling words of that sub-section
are those I have quoted from the beginning of the clause,
/. e. " the Administration of Justice in the Province."
These are general words which embi'ace the particulars
afterwards specified in the sub-section, which thus pro-
ceeds " including the constitution, maintenance, and organ-
ization of Provincial Courts, both of civil and of criminal
jnr'sdiction, and including procedure in civil matters in
those Courts." Under the general term of Administra-

(1) 2 Ch. Ch. (Ont.) 170. (2) 3 Can. S. C. R. 1 ; ante vol. 1, p. 167.

(3) 29 U. C. 0. P. 261.

ONTARIO HIGH COURT OF JUSTICE-CH. D.

817

.in

tion of Justice is embraced the constitution, etc., of
Courts, and procedure in the Courts. Thus in the Con-
solidated Statutes of Upper Canada, under the title
'' Administration of Justice," we tind as sub-division 2
" Courts," and as chapter 22 of that sub-division " Com-
mon Law procedure." The scope of sub-section 14 is
further manifested by sub-sections 13 and 16, the former
relating to property and civil rights in the Province, and
the latter to all matters of a merely local or private
nature in the Province. This legislation has reference to
intra-provincial matters ; such, namely, as are therein
[715] particularized. But I do not think that the language
is intended to include the matters legislated on in 31
Vict. c. 76 (D.) That Statute is to provide, as a matter
of international courtesy, for the taking of evidence of
persons living within the Province which is needed by
foreign tribunals in suits being litigated out of the Pro-
vince. Such legislation does not pertain to civil rights in
the Province, nor to the administration of justice in the
Province, nor to the constitution of Provincial Courts for
the administration of Justice in the Province. The term
"constitution" in this connection was relied on by the
appellant. But tlie primary and proper meaning of the
word as here used is, as given in the dictionaries, " the
act of constituting ; formation." It is, I think, synony-
mous with the word "establishment," which is used in
sect. 101 of the B. N. A. A.ct.

The taking ^l evidence in this Province to be used in
civil actions pending in foreign tribunals, is not a subject
which is assigned to the exclusive legislative authority of
the Province by sect. 92, of the B. N. A. Act, because such
proceedings are of extra-provincial pertinence and do not
relate to civil rights in the Province. The line of reason-
ing in The Niagara Election Case (1), strikes me as

(1) 29 U. C. C. p. 261.

188.1
Wetmbrkii,

AND
.rONIW.

lioyd. C.

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318

ONTARIO HIGH COURT OF JUSTICE-CH. D.

applicable to the Dominion Act which is now impeached
as ultra vires. The Dominion Parliament has in effect
constituted the Courts of Ontario, and their Judges
Dominion Coui-ts for the purpose of taking such evidence
in aid of foreign tribunals as a matter of international
comity. It is to be noted that Wilson, C. J., who origi-
nally dissented from the majority of the Court in the
Niagara Case (1) retracted that dissent, and expressed his
approval of that case: Regina v. O'Eourke (2). The
whole argument for the appellant in this matter is
answered by the observation of Lord Selborne in Valin
V. Langlois (3). " There is nothing here (in the Act) to
raise a doubt about the power of the Dominion Parlia-
ment to impose new duties upon the existing Provincial
[716] Courts, or to give them new powers, as to matters
which do not come within the classes of subjects assigned
exclusively to the Legislatures of the Provinces."

The order appealed from is therefore properly made
pursuant to a statute which was within the competence
of the Dominion Parliament, and the appeal should be
dismissed, with costs.

Ferguson, J.: —

I am of opinion that quite enough is contained in the
judgment in the case of Valin v. Langlois (4), to indicate
what the judgment should be in this case, and I concur
in the judgment and conclusion of the Chancellor that
the appeal should be dismissed, and the order affirmed.
I think there should be costs of the appeal.

(1) 29 U. c. C. P. 261.

(2) 32 U. C. C. P. p. 40i!; an<c vol. 2, p. 660.

(3) 5 App. Cas. p. 120 ; ante vol. 1, p. 164.

(4) 5 App. Cas. 115 ; arUe vol. 1, p. 158.

ONTARIO HIGH COURT OF JUSTICE-Q. B. D.

319

[QUEEN'S BENCH DIVISION.]
Gibson v. McDonald.

[Reported 7 Ontariu Reports 4^1.]
County Judge's jurisdiction — Oronpitnj Clauses Act — R. S. 0. c. 4^,

An Act of the Ontario Legislature provided that the County Judge
of one County might preside at the Sessions in a County other
than that of which he was Judge :

Held, by Armour and O'Connor JJ. , (Wilson C.J. doubting), that
this enactment was not within tlie competence of the Legislature.

On the 27th of November, 1884, Osier, Q. C, for Gibson,
moved, pursuant to notice given in accordance with 4-6
Vict. c. 6, s. 6, for an order for the issue of a writ of
prohibition staying all further proceedings in the matter
of an appeal to the General Sessions of the County of
Renfrew from the conviction of two magistrates, of and in
the Temporary Judicial District of Nipissing, of one
George McDonald, for an assault on the said Gibson, on
the grounds: 1. That no appeal will lie to the General
Sessions of the Peace for the County of Renfrew from a
conviction by a magistrate or magistrates in the Tempor- '
ary Judicial District of Nipissing, the conviction appealed
from having been made by magistrates in the said Tem-
porary Judicial District. 2. That the chairman who pre-
sided at the said General Sessions of the Peace for the
County of Renfrew was not the Judge of the County of
Renfrew, but was a Judge of an adjoining County, to wit,
the County of Lanark.

Osier, Q. C, in support of the motion. As to one
County Court Judge acting in a different County for

1880
Jan. 0.

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32(1 ONTARIO HFOH <'0[TRT OF .IllSTK'K-Q. B. D.

another County Judge, he referred to th(> B. N. A. Act,
sect. i)2, sub-sect. 14; R. S. 0. c. 42, ,s,s. 22-35, and I.'. S. 0.
c. 44, ss. 0, 7, H. A County Court Judge appointed for a
particular County has no criminal jurisdiction outside of
his own Count}' : Wihoa v. McGuire (I),

Irving, Q. C, for the Crown. Regina v. Bennett (2),
(ietermined that the Ontario authorities could appoint
Justices of the Peace under the Confederation Act, sect.
02, sul)-sect. 14, and a magistrate so appointed under the
Ontario statutes is a good appointment for the tran.saction
of all macfisterial business within such a Judicial District.
The Thrasher Case, (8) submitted to the Supreme Court by

(1) 2 O. R. 118 ; ante vol. 2, p. 665.

(2) 1 O. R. 445 ; ante vol. 2, p. 634.

(3) [The following case respecting
the status of the Su|)renie Court of
British Columbia, and the power of
the Legislature of that Province to
legislate in respect of proceedings in
that Court, and the residences of the
Judges thereof, was submitted to the
Supreme Court of Canada, in Setvell
V. Tke B. C, Towimjand Transjwrta-
tion Company, commonly called the
Thrasher Case : —

"Important questions, requiring
an early and definite answer, affect-
ing the status of the Supreme Court
of British Columbia, and the power
of the Legislature of the Province to
legislate in regard to procedure in
that Court, and the residences of the
Judges thereof, having been raised
on the hearing of what is commonly
known as the Thrasher Case, had
before Sir M. B. Begbie, Chief Jus-
tice, Mr. Justice Crease and Mr.
Justice Gray of that Court, under
circumstances not, it is thought, ad-
mitting of an appeal to the Supreme
Court of Canada, the opinion of the
Supreme Court of Canada is desired
by His Excellency the Governor-
General in Council upon the follow-

ing questions referred under the pro-
visions of sect. 52 of ' The Supreme
and Exchequer Court Act:'

"1. Is the Supreme Court of
British Columbia a Provincial Court
within the meaning of the 14th sub-
sect, of sect. 92 of the B. N. A. Act ?

"2. Has the Legislature of the
Province exclusive legislative autho-
rity over the procedure in all civil
matters in the Supreme Court of the
Province? If not, to what extent
has it such authority ?

" 3. If that Legislature can make
rules to govern the procedure of that
Court, can it delegate this power to
the Lieutenant-Governor in Council?

"4. Is the 'Judicial District Act,
1879,' British Columbia, within the
powers of the Legislature of that
Province? If so, does it apply to
Judges appointed before that Act
came into force ?

' ' 5. Are the following Acts passed
by the Legislature f)f British Colum-
bia, namely :

"The 'Better Administration of
Justice Act, 1878' (42 Vict. c. 20.
1878) ;

"42 Vict. c. 12 (1879), An Act to
amend the practice and procedure of
the Supreme Court of British Colum-

ONTAIUO HIGH COUilT OF .1 US ilC !•:-(,). M. D. M'il

tho Governov-donoral, shews the powors of Provincial 1886
Lt'gislatureH to legislate in cases providing for the Judicinl (iuiHON
services of Judges. The R. S. 0. c. 42, s. LS, is the one moDonald.
under which County Court Judges have been autl\orized vrhTmknt
to act in certain cases beyond the limits of their own
Counties, and Wilson v. McGuire (1), maintained the
legislation which was moved against.

lAish, Q. C, for the original defendant. As to the ques-
tion relating to the County Court Judge, Valin v. Lamj-
lo'iK (2), was a decision in favour of what has been done
l)y the Ontario Legislatuie in passing the Act in ijuestion.-
The Judicature Act enables the Judges of one of the
Superior Courts to sit in any of the other Divisions of the
High Court.

bia, and for other purposes relating
to the Administration of Justice ;

"44 Vict. c. 1, An Act to carry
out the objects of the ' Better Ad-
ministration of Justice Act, 1878,'
uiid the 'Judicial District Act,
1H7!I:'

" So far a.s they relat<! to procedure
in the Supreme Coiu-t of British
Columbia, within the legislative
:iuthority of tlie Legislating' of the
I'l-ovince?"

The following is the opinion of the
Supreme CoiU't on thi' above case,
ivported 4 Canada Law Times, \>. .53:

1. The Court is of opinion that the
Supreme Court of British Columbia
is :i Provincial Court, within the
meaning of sect. 1)2, sub-sect. 14, of
tlie B. X. A. Act, 18(57.

2. The Court is of oijinion that the
Legislature of the Province has ex-
clusive legislativ(! authority over the
|ii(icedure in all civil matters in
tile Supreme Court of the Province
"liich come within the jiu'isdiction
I if the Provincial Legislature.

H. The Court is of opinion that the
Legislature can make rules to govern
21

the procedure of that Court in all
such matters as are limited by the
preceding answer, and can delegate
their power to the Lieutenant-Gov-
ernor in C(mncil.

4. The Court is of opinion that the
"Judicial District Act, 1879"(B.C.),
is within the {)owers of the Legisla-
ture of the Province, and that it does
ai)ply to the Judges api^tinted l)efore
that Act came in force.

5. The Court further held that, so
far as they relate to procedure in the
Su])renie Court of British Columbia,
the fiillowing Acts were constitu-
tional : The Better Administration
of Justice Act, 1878 (42 Vict. c. 20);
42 Viet. c. 12 (187!)), An Act to
amend the practice and procedure of
the Supreme Court of British Colum-
bia, and fur other piu'poses relating
to the Administration of Justice;
44 Vict. c. 1, An Act to carry otit the
objects of the P)etter Administration
of .fustice Act, and the Judicial Dis-
trict Act, 187U.1

(1) 2 O. R. 118 ; ante vol. 2. p. (iGo.

(2) 5 A pp. Cas. 11,5; ante vo], 1,
).. 158.

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1886

( { 1 HHON
0,

MoDoNAr

An<;t'MRM.

.S22 ONTARIO muH rornr ov .iusticf-q. n. d.

Oa/er, Q.C, in repl}', referred on the generul con.stitii-
tional qiu'stion to He S(]mcr{l)\ Lenoir v. Ritchie {2).

Wilson, C.J.: —

[After (liscussin^4' whether an ap|teal would lie from the
convicting Justices and conchiding that it would not, the
learned Judge said, p. 408] :

Upon the point of the County Court Judge of Lanark-
presiding on the hearing of the appeal in the County <»f
l.'enfrew I give no positive opinion, as it is not necessary
to do so; but 1 am more in favour of holding that the
('ounty Court Judge of Lanark had the power to preside,
than to hold he had not.

Armour, J. : —

[After discussing whether an appeal would lie and con-
cluding that it would not, the learned Judge continued,
p. 411]:

As to the second contention, that the person who pre-
sided at the Court of General Sessions of the Peace for
the County of Renfrew, at which this appeal was heard,
had no authority so to preside, 1 have but little to add to
what I said in Wilson v. McGuire (8), for this is only
another phase of the same usurpation.

I do not decide or discuss, but expressly reserve the
question as to the power of this Province to appoint
Justices of the Peace, and to appoint County Court Judges
to be Justices of the Peace for every Cour'y an«i [art of
Ontario; nor do I discuss the pow ' .lis Province to

provide that the Judge of the Coun .»urt of the ( >nt}'
of Lanark shall be chairman at thi ' Jenera! Sessions of
the Peace for the County of Renfrew, for th. < has not been

(1) 46 U.C.Q.B. 474 ; ante vol. 1, p. 789.

(2) 3 Can. S.C.R. 575; ante vol. 1, p. 488.

(3) 2 O. R. 118 ; ante vol. 2, p. 665.

ONTARIO HIGH COURT OF JUSTICE-(^ H. D. 823

IHN'i

so provided ; hut it is provided that the Judge of tlio
C,!ounty Court of the County of Renfrew .shall he chair- (inwoN
man of the General Sessions of the Peace for the County M()Uon\i.i>
(tf Renfrew, and when this appeal was tried the Judge of ^,.„7,^. j.
the County Court of the County of Lanark was presiding
[415] as chairman of the General Sessions of the Peace
for the County of IJenfrew only and not otheiwise than
hy virtue of his oftice of Ju<lge of the County ( 'ourt of the
County of Lanai'k, which, in the view I take, he had no
light to do.

In my opinion, therefore, both contentions must prevail,
and the order must be absolute for a prohibition.

( )'CoNNOR, J. : —

Two (piestions were presented for the consideration of
the Court : (1) Whether an appeal lay from a conviction
of Justices of the Peace in the Temporary Judicial District
of Nipissing, to the General Quarter Sessions of the Peace
for the County of Renfrew, the County nearest to Nipis-
sing, or not. (2) Whether, if the appeal lay, the Judge
of the County Court of the County of Lanark had autho-
rity to preside at the said Sessions and try the appeal, or
not ; the Counties of Renfrew and Lanark being grouped
together and forming a District for judicial purposes,
under cap. 42, Revised Statutes of Ontario.

[After discussing the first question and concluding that
there was no appeal, the learned Judge continued, p. 415]:

The second question, pj'opounded and argued with much
skill and ability on both sides, involves the " constitution-
ality " of a statute of the Legislature of the Province of
Ontario (1). This question presents an inquiry which is
pregnant with grave considerations arising from a due
appreciation of the serious consequences which may result
from an erroneous decision either way. Declaring a

(1) 39 Vict. c. 14 (R. S. 0. c. 42, s. 16, et seq.)

:^i

■ :- ■ I
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tii

1885

(ilBSON
V.

McDoNAi.n.
O'Connor, •',

' s

324

ONTARIO IIIGir COURT OF JUSTICE- (]. H. D.

P!U

statute affecting general and important niattora void must
involve great responsibility, because interests of greater w:
less, and probably of very great general import-iuce, aie
almost sure to be injui'ed. Hence Mr. Justice Cooley, in
his able and well considered Treatise on Constitutional
Limitations, aptly observes :

" It must be evident to any one that the power to
declare a legislative enactment void is one which the
Judge, conscious of the fallibility of the laiman judgment,
will shrink from exercising hi any case where he can con-
sistently, with a due regard to duty and official oath,
decline the responsibility." And he adds :

" In declaring a law unconstitutional, a Court must
necessarily cover the same ground which has already been
covered by the legislative department in deciding upon
the propriety of enacting the lav/, and they must
indirectly overrule the decision of that co-ordinate depart-
ment. The tnsk is therefore a delicate one, and only to
be entered upon with reluctance and hesitation."

But how much more forcibly do such remarks ap[)ly to
» like proceeding in this country, whei'e the expression
" constitutionality of a statute " is the lesult of a new
departure and the creation of a new practice previously
unknown to Canadian and British affairs, and to parlia-
mentary and judicial practice, than to the legislative and
[410] judicial system of the United States, where that
institution was made a fundamental principle of theii-
constitution, as a result of popular volition.

Thei^, ' is a fundamental })rinciple of a new constitii-
tiou, resulting immediately from the will of the people in
a state of revolution. Here, it is merely a new thino
(Migrafted on an old constitution, as a mere outgrowth (»i
circumstances resulting from the necessities of local posi-
tion in this new world, and of colonial dependence. Anil
for the same reasons the application of the institution i-*

ONTAUIO HIGH COURT OF JUSTICK— Q. 15. L).

:}25

also i!'or<' difficult and irksome here than it is in the if^^"'
rnited States. Giiwon

In the present case the duty cast on the Court is pecu- McDonam'.
liarly onerous and delicate. The Act in question purports oc^jor j.
tf effect peculiar changes and new ar.d essential arrange-
iii'nts in nn important, though infi.-rior, hranch of the
jiidieijil system of the Province.

It was passeil, Mcted upon and put into operation several
y-ars ago, and it has continued in operation since, not-
withstanding that doubts concerning its validitv have
always existed and been frequently expressed.

It may easily be imagined, therefore, that important
interests of both a ]iublic and private natiu'e must be dis-
turbed and att't'Cted, in most cases injuriously, if tlie
statute be found destitute of authority and consequently
void. It is impossible to calculate the evil results which
may he expect '<' to result from the confusion created by
•^'> disturbing a cause.

But, on the other hand, allowing matters to continue and
proceed under such a statute can lead only to a greater
accumulation of evil results and more disastrous conse-
([I'^nees ; for sooner or later the statute is sure to be brought
tu the crucial test, be the consecpiences what they may.

It is the privilege of every man to insist that his rights
an 1 interests sliall be regulated by laws of undoubted
validity. The sooner then a statute, which is seriously
b' Heved by many, and especially by a considerable portion
I't'the legal iirofession, to be unconstitutional, is authorita-
[417] tively jironounced ujion the better. The public
iiitrr.-st rc(|uii'cs that proceedings undei' such a stnt\ite
^liuitjd be stayed, if it be void; oi", if possessed of the
authority it purports to have, it is necessary, or at least
a'lvisable, that doulits respecting it should be set at rest
by a declaration ol: the proper tribunal, clotlu'<{ with the
necessary authority.

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1885

«llB80N

M«I)ONAI,l).

O'Coiiiior, J.

:i2G

ONTARIO HIGH C^OURT OF JUSTICE— Q. B. D.

Impressed with this view of the subject, I pioceed to
the consideration of the second question raised and await-
ing decision.

The Judge of the County Court is, by an old statute,
which does not appear to have been repealed, Chairman
of the Court of General Quarter Sessions of the Peace in
the county for which he is commissioned ; and this is
imperative: Con. Stat. U. C. c. 17, s. 5, and the original
statute there referred to ; and see also R. S. O. c. 44, s. 6,
which is precisely the same. The Judges were appointed
by the Governor-in-Council.

Section 96 of the B. N. A. Act provides that " The
Governor-General shall appoint the Judges of the Superior,
District, and County Courts."

Section 1, c. 15, Con. Stat. U. C. provides : " There shall
be in every county, or union of counties, in Upper Canada,
a Court of law and record to be styled the County Court
of the cr^unty of , or united counties of ,

(as the case may be) ;"

Section 2 of the same Act provides : " The Governor
shall, from time to time, appoint under the great seal, one
person or two persons, being a barrister or barristers, of
at least live years' standing at the bar of Upper Canada,
to be the J.-.lge or Junior Judge in each of the said
(Jourts."

The Judge is therefore appointed under tlie great seal
to be and he is the Judge in the County ( -ourt of the par-
ticular county ; and by section n, he "shall reside within
the county for which he is appointed." Section 7, referring
to the Judge, Junior Judge, etc., of the County Court,
uses the expression, " within his county." Section 8 gives
the form of oath the Judge is to take, wherein he swears
[418] that he will truly and faithfully, etc., " execute the
several duties, powers and trusts of Judge of the County
Court of the county of

ONTAHIO HIGH COURT OF JUSTICE-Q. B D.

327

1885

AM).

It is, then, abundantly evident that the Judge, Junior
Judge, etc., is appointed for a particular county, and for oibson
one county only ; he must reside therein, and his oath of mcDon
office applies to that and no other county. But, as tt'cJnm>r J
already stated, the Judge of the County Court of the
county " shall preside as Chairman at the General Quarter
Sessions of the Peace for the county ; but in case of the
absence from sickness, or other unavoidable cause, of the
Judge of the County Court, and of the Junior and Deputy
Judge thereof, the justices ^present shall elect another
Chairman j^ro tempore."

Section 8 of c. 44, R. S. O,, omits the latter part of the
foregoing clause of the consolidated statutes, which pro-
vides for the election of a chairman pro tern., and provides
that : " Wherever, from illness or from other casualty, the
Judge who is to hold the sittings of the General Sessions
of the Peace, is unable to hold the same at the time
appointed therefor, the sherifi' of the county . . may
adjovirn, by his proclamation, the said Court . . from
day to day, until the Judge is able to hold such Court, or
until he (the sheriti) receives other directions from the
Judge or Provincial Secretary."

The consolidated statute uses the expression," General
Quarter Sessions of the P "ce," and in the Ontario Act it
is the " General Sessions oi the Pence;" but I presume
both expressions refer to, and mean the same thing. Both
statutes seem clearly to enact that the Judge, or Junior
-liKl^'e, etc., shall ]ireside as chairman of the Quarter Ses-
sions ; in fact, the duty of so presiding is attached to the
ottice, and to the individual only as the incumbent of the
office. Then, if the Provincial Legislature has no power,
as I hold it has not, to appoint a ( 'ounty Court Judge, or
to give him power or authority as such, neuheihas it, in
my opinion, power to authorize a County JudjT'* <^" preside
at the Quarter Sessions of a county other th.' > ' xt for

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oXTAItlM lij(;ll ( Dllil' OF .JUSTi(:i-:-(^ 15. 1).

iM>

1886

(Gibson

McDONAI.li.

O'Coi.noi J.

ilif =

[419] wliich he is api»ointe(l l»y the Governor-rioiioral ;
for that authority is inherent in and a iunction of the
office of the Judge of tliat otlier County, whicli tliat Judge
is sworn to perform. In fact, to hohl otherwise would be
to hold that a Provincial statute nuiy authorize a class of
persons to act as County Court Judges in Counties for
which they have never heen appointed as .such by tlie
Governor-General, and therefore to act as County Court
Judges without having been appointed as sucli. But the
exclusive right to appoint the Judges is reserved to and
vested in the Government of the Dominion, and even the
I'arliament (if the Dominion cannot divest the Gove; n-
ment of that power, for it cannot so change the B. N. A.
Act. ■

The Piovincial Legi.slature has, then, no power or autho-
rity to authorize or make sucli appointments. It is true that
the Ontario Act does not purport directly to make or
authorize such appointments, but it attempts to do so
indirectly, by assuming to clothe the Judge of a County
Court, who has been duly appointed for that County, with
the powers and authoiity of a Judge of the County Court
in other Counties, which are not included in his commi.s-
si«)n as united Counties. But the Legislature cannot do
indirectl}' that which it is precluded from and has no
power to do directly.

It was sugge^'te<l on the arginnent bv counsel fbr tiie
Province, tliat the etlectof the Act in question was merely
that it ap))ointed a certain person designated by the name
of his office wlio was to preside at the Quarter Sessions,
and that the Legislature hatl powei" to do this. I cannot
accept this suggestion as a valid argum<;nt; it begs the
question rather than establislies tlu* proposition. Tlie
Provincial Legislature may, I ])r(>sume, alter and changf
the constitution of the County ('ourt an<i of the Quarter
Sessions, as it lias altered the constitution of the Superior

ONTAKIO II Kill COUUT OF .IL'STICK-V. 1!. I).

M29

Courts, but it cannot appoint or authorize tlie appointment W8">
of the Judj^es of those Courts. By tlie clause of the (}ib.son
B. N. A. Act, ah-eady cited, the appointment of the Judges m, dosaii..
is vested ill the Dominion Government. (»(\^,r j.

[420] But besides this it must be obsei'ved that by the
9th section the Executive Government of and over Canada
is continued and vested in tlio Queen.

The Queen is neither part nor brancli of the Provincial
fie,t,nslature, but she is of the Dominion Parliament.

The Dominion of Canada is tJie lariter and more ucneral
oi'Ljanization, and its executive has by s' ct. 12 of tht;
B. -N, A., or Constitutional Act, all the powers which the
Province had at tlie time of the Union, "as far as the same
continue in existence and capable oi being exercised after
the Union;" that is to say, its powers are as nearly like
and as extensive as are those of the executive of the
United Kingdom, as the powers of a colony may be in its
relations to the parent state.

The Province is within the Dominion, is part thereof,
and therefore narrower and necessarily subordinate in
position and extent of ai;thority ; and according!}-, after
providing and constituting tiie Provincial Executive Gov-
ernment, the Act, by its Goth section, provides that the
j.owers of its executive are those of the late Province, "as
far as the same are capable of being exercised after the
I'ni'.n in relation to the Government" of the Province.

It is remarkable that the woi'tls, "as fai- as the same
C'litinue in existence,"' which are in the 12th section, are
omitted fron\ the Gotli section. Of the precise effect of
this omission 1 am not prepared to sjteak with eonfidenct ;
liut I think it indicates that some powers continued to
exist in relation to the Dominion and were vested therein,

U) tl

but which did not continue to exist in relation
Province — that, in short, all the former powers continued
to and were vested in the Dominion, us far as thev could

Pi I

11. .:.

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s?^™;!S!smsmmmmmmmmmmm^mg.

Gibbon

I'.

McDonald.

O'Connor, J.

830

ONTARIO HIGH COURT OF JUSTICE-y. B. D.

be exercised, but that the Province took only such powers,
being part of those continuing to exist, as were suitable
to its position, legislative powers and needs required in
relation to the Dominion and its Government.

The Governor-General is the direct representative of
the Queen, her only representative in Canada, holds his
[421] commission immediately from her Majesty, and exer-
cises the larger powers of the Executive of the Dominion,
inferior only to the powers of the Imperial Governmeiit,
but superior to those of the Provincial Government.

He, therefore, exercises all the executive power which is
vested in Her Majesty by the Act, and the prerogative
powers of the Crown to the fullest extent that they are
capable of being exercised in relation to the Dominion ;
that is, to the fullest that is consistent with colonial
dependence, for that is the effect of his commission and
instructions. The Queen is the foundation of justice.
Justice is, in the theory of the constitution, as it was
originally in fact, administered by the Crown ; that is, by
the king in person, in his Aula Regia.

No person can administer justice but by the authority
and in the name of the Queen.

She, therefore, appoints the -fudges or Justices, who
administer justice in her Courts.

In Canada the Governor, who alone represents her there,
appoints the Judges in her name, under the advice of his
council.

The criminal law is a branch of that justice which can
be administered in Her Majesty's name only, by Justices
appointed by her for that purpose.

A limited portion of the criminal law is administered in
the Cour^ of General Quarter Sessions, and it seems impos-
sil)le to escape the conclusion that the persons who admin-
istered it there must be conunissioned thereto by Her
Majesty. This position is strongly fortified by the fact

OM'AKIO HIGH COURT OF .TUSTICK-Q. 15 D.

:;:}1

that legislative power over the crimiiuil law, and of oiin-
inal procedure in the Courts, is vested exclusively in the
Parliament of the Dominion. A full consideration of the
whole subject properly regarded in the light of the Con-
stitutional Act leads inevitably to the conclusion that all
persons who administer the criminial laws, which is the
branch in question in the present case, by whatever name
they may be designated, must be commissioned by the
Crown for that purpose; and in Canada that means by
the Government of the Dominion.

[422] To make the matter clearer, it ma}'^ be as well to
examine somewhat more in detail the composition of the
Executive of tho Province, Section 58 of the Act provides
that an officer, to be styled the Lieutenant-Governor, shall
be appointed by the Governor General in Council, by
instrument under the Great Seal of Canada.

Section 03 provides that : " The Executive Council of
Ontario . . . shall be composed of such persons as the
Lieutenant-Governor, from time to time, thinks fit ; and
in the first instance of the following officers, namely : —
the Attorney-General, the Secretary and Registrar of the
Province." etc.

These form the Government of the Province with the
powers mentioned in section Go, already referred to.

Of this Government neither the Queen nor her repre-
sentative is a part. It is composed merely of " officers,"
of whom the Lieutenant-Governor is an officer of the
Dominion, appointed by the Governor General. This
distinction is a mai'ked one, which seems in itself clearly
to exclude from the Provincial Government the exercise
of the Crown's prerogative, and the statutory powers
reserved to the Crown in relation to the administration of
justice in Canaila. This seems to have been the opinion
of thj^ late Chief Justice Harrison, as cautiously indicated

188.5

(•iBSON

NLcDONALl).

O'Connor, J.

■ 'I

■ i

■; «;

it-

;''V

'■'■r

u\\

asri

■■'■^■l

I li

i/^

332

KSN">
(illiSON-

.M( DONAI,

()■('■. niK.r,

ONTARIO nUiU COUi;!' Ol' .JUSTlCt;— Q. J{. 1).

in Rcijuni \. A liter (I;, and I am awaic that it in a
measure conflicts with an ohltci' didam cxpiessed in the
same case by tho present Chief Justice! of this Court ; hut
tlie question has undergone much discussion and considera-
tion wliercby additional and clearer light has been cast -
on tlie subject since tlien.

It only remains now to examine, more ftdly than 1 have
already done, and compare the legislative pijwers of the
Parliament of the Dominion and of the Legislature of the
Province in relatif)n to the administration of justice.

Section t)l of the Constitntidual Act provides that "it
shall be lawful for the Queen, by and with the advice
and consent, &c., to make laws for the |)eace, order, and
good government o^' Canada, in relation to all matters not
[42:3] coming within the classes of subjects l>y this Act
assigned exclusively to the Legislatures of the Provinces ;
and for gre>iter certainty, but not so as to I'estrict the
generality of the foregoing terms of this section, it is hereby
declared that (notwithstanding anything in this Act) the
exclusive legislative authority of the Parliament of Canada
extends to all matters coining within the classes of subjects
next hereinafter enumerated ; that is to say : —

"27. The Criminal Law, except the constitution of
Courts of Criminal Jui'isdiction, but including the Proce-
dure in Criminal Matters."

The Parliament of Canada, then, has power " to make
Liws for the peace, order, and good government of Canada
in relation to all matters," &c. Then observe the force of
the words, "and for greater certainty, but not so as to
restrict the generality of the foregoing terms," &c.

The expression, " The Criminal Law," in sub-sect 27,
miist bo read with reference to the expression "for the
peace, order, and good government of Canada," in the
principal elau'je.

(1) -IJ IT. C. (,>. 15. ;$!)1 : iviti' V..1. 1. (). 722.

make

lanada

)vce of

as to

ct. 27,

or the

n the

ONTARIO IIKiH COUUT OF JUSTICE— t^ U. D.

lilili

I88ri

(lllWON
V.

Then it is neeessaiy to obseive the force of the conckid-
itig paragraph of tlie same clause : "And any matter coin-
ing within any of tlie classes of subjects enumerated in ^rtDoNAi-n.
this section sluill not be deemed to come within the class o^,^,,. j.
of matters of d local or private nature com|)rised in the
enumeration of the classes of subjects by this Act assigned
exclusively to the Legislatures of the Provinces."

Section 92 provides :

"In each Province the Legislature may exclusively
make laws in relation to matters coming within the classes
of subjects next hereinafter enumerated, that is to say: —

" l-i. The adininistration of justice in the Province,
including the constitution, maintenance, and organization
of Provincial (Courts, both of civil and of criminal juris-
diction, and incliniing procedure in civil matters in those
Courts."

[424] "16. Generally all matters of a merely local or
private nature in the Province." These words of a " local
oi' private nature," repeated here and emphasized by the
adverb " merely," make the limitation of the power of
the Provincial Legislature to such matters clear and precise.
Its power is undoubtedly, then, subordinate to that of the
Parliament of Canada, and in no respect are their powers
co-ordinate.

Then, as regards the criminal law, it stands thus
l)etween the Parliament of Canada and the Legislature of
the Province. The Provincial Legislature has the exclusive
right to make laws for the constitution, maintenance, and
organization of the Courts ; th( '^aHiament of Canada has
the exclusive control of the criminal law, and of the pro-
cedure in criminal matters.

Then, besides the constitution of the Courts, the appoint-
ment of the Judges and the procedure in criminal
matters, there is a residue, called the administration of

AVi

■ 1* '.a

'11

V
V

:'U

i.\

^F^'

iP'^

I'l:

nifl

1885

(rlltSON
V,

Nr<"l>nN.\i.ii.
O'Coiiiiiir. •!,

♦

lilU ONTAHIO HIGH ClOUHT OF JUSTICE -C^. It. I).

justice, which is assigned exclusively to the Legislature
of the Province.

It does not include, but excludes the appointment of
iluilgcH and the criminal law and procedure, but it includes
the administration of justice in other respects, and the
constitution of the Courts in all respects, except as to the
person who ailministers justice therein. The criminal law
and procedure, and the appointment of the Judges, are
carefully excluded from the legislative control of the
Province. In short, tie Legislature of the Province
possesses only enumeraf^'d powers of a local and a private
nature conferred on it; but the Parliament of Canada
possesses the general poweis of legislation necessary for
the peace, order, and good government of (-anada, only
part of which is ('numerated.

1 therefore conclude that the Leijislature of the Province
has no power, by Act or otherwise, to confer on any person
authority to preside at the Quarter Sessions in any
County to administer the criminal law therein, instead of
the Judge or Junior Judge, &c., of the County Court of
[425] that County ; and it makes no difi'erence, I think,
that such person is the County Judge of another County.
The Act in question is therefore not within the competency
of the Provincial Legislature, and is void. (1)

(1) [An unsuccessful attempt ha.-<
since been made, in McKenzie v.
Dancey (May 26, 1885), to bring this
point before the Court of Api)eal,
but the ca.«i- was disposed of on

other grounds. It is understood that
the Government of Ontario iiuri)osc
bringing the matter Ixifore the higher
Courts at the first opi)<)rtunity.]

ONTAUIO HIGH ( OlfRT OK .lUSTlCK— M. O.

l\:i:

[MASTER'S OFBICK.]
Clarke v. Union Fire iNSbnANCE Company.

[Rejyorki.l 10 OnUirio Pnirticc Report.^ •>7.). ]
ProriiiridI iiirnrpovntiun — B. N. A. Ar,t, n. !tS, ,s///»-.s. //.

A company incorporated by a Provincial Legislature for the business
of insui'ance, jwasessea the same capacity and francliises within
the jurisdiction creating it as a company incorporated by the
Imperial or Dominion Parliaments ; and may enter into con-
tracts outside the Province wherever such contracts are recog-
nised by comity or otherwise.

The term "Provincial objects" in the B, N. A. Act refers to local
objects within a Province, in contradistinction to objects which
are common to all Provinces in their collective or Dominion
quality.

In this case a decree was made at the suit of a creditor,
referring it to the Master in Ordinary to wind up the
company, and to adjudicate upon the claims of creditors
holding policies of the defendant company. Prior to the
decree a common law action had been commenced by the
clc^.mants, the Export Lumber Company of New York,
against the defendants, on their policy, which was referred
to the Master pursuant to the decree. The other facts of
the case appear in the Master's judgment.

Falconhridge, for the Export Lumber Company.

W. A . Foster, for the plaintiff.

A. C. Gait, for the defendants.

[314] Mr. Hodgins, Q. C. :—

This is a claim brought in by the Export Lumber
Company of New York, against the defendants, a fire

iMvS.S

lli't. Xil,

t Ail

:{.}(i

()\TAI!I() MICH COITIIT OK .MISTICK -M. (>.

1888 insm'aiKH' C()iin)any incoiiioi'utod l»y the Lej^islatuiv of

(";.AHKE Ontario, :!!j Vict. c. })3. The policy, (hited 5th August,

r.NioN Kiiii; l^*S(), was (leliviToti to the ehiiniants on the 7tli or Stli,

f<!?»'i.'!^vv'^' -Tid the tire (xiciirred on the 10th of the same month.

,, .'. ,, ,, On the 11th th(> claimants tender' d a checuie for the lU'e-

— iiiiiiin, winch was immediately returned hy the defemlant.s.
The principal defences are that the defendants heiiii,'
a provincial company luul only limited powers, and
coidd not contiact out of tliis Province ; and that, the pre-
mium not having been paid or tendered until after the
loss occurred, the policy is void.

In arguing that the contract was iiltr<t rires, it was
contended that as the B. N. A. Act (sect. 92 sub-sect. 11)
empowered the Provincial Legislatures to incorporate
companies with "Provincial objects," this corporation
could have no existence, and therefore no power to con-
tract, outside the Province ; and in any event thnt not
having ol)tained legislative sanction authorizing it to
make contracts of insurance outside the Province, this
contract was void.

The substantial objection is against the legislative
powers of the Provincial Legislatures ; for it was contended
that a corporation created l>y them has not the .status nor
capacity to contract outside of provincial Jurisdiction
which a Dominion corporation possesses. There is no
warrant for this contention. Thei-e is nothing in the
1). N. A. Act, nor in the classes of subjects within their
legislative authority, which would ])lace these Legisla-
tures outside the definitions given V)y writers on this
subject: "The colonial Legislatures, with the restrictions
necessarily arising from their dependency on Great fJritain,
were sovereign within the limits of their respective
territories:" 1 Story's Const., 4th (m1., sect. 171. "Tlu'
legislative bodies in the deinrndencies of the Crown, have
8ubmodo the .same powers of legislation as their prototype

ONTAIUO HIGH COUUT OF JUSTICE-M. 0.

387

■^lature of
I Augu.st,
th or 8th,
ic iiiunth.
)!• the itit'-
etendants.
mts heiiiL,'
rt'evs, and
it, the pre-
atter the

res, it was
h-sect. 11)
ricorporate
ovporation
er to con-
; that not
;ing" it to
dnce, this

llegislative
cntended
4atus nor
ristliction
icne is no
o- in the
ihin their
Leu'ishi-
on this
Istrictions
It Britain,
lespectivr
" The
m, have
prototype

,-iiis, (^c.

in Engl.ind, suhjcct, however, to the final negative of the is«JJ
Sovereign:" 1 Broom's Com. 123. Ci-mikk

[81')] The term " incorporation of companies with Pro- vnion Fiue
vineial ohjects " in the B. N. A. Act (sect. 92 snb-,sect. 1 1) o';,'",'^';.'.''
defines tlie chisses of cor[)orations within the legislative j,
authority of the Provinces ; and its meaning must be
gathered from analogous clauses empowering then? to
make laws in relation to " local works and undertakings "
(sub sect. 10) and " matters of a merely local or private
nature in the Province" (sub-sect. 10) and under which it
js obvious the legislature may incorporate companies for
like purposes. These references show tiiat the terms.
" provincial " and " local " are interchangeable, and nuist
Ije construed to mean " hwal objectis" witliin a Province,
in contradistinction to objects common to the several
Provinces in their collective or Dominion (quality, and
which are within Dominicm legislative jurisdiction.

This power to incorporate companies is incidental to a
sovereignty, though such power may be delegated. " The
Sovereign, it is said, niay grant to a subject the power of
erecting corporations, . . but it is really the crown
that erects, and the subject is but the instrument :" 1 Bl.
Cora. p. 452. Corporations may be erected by charter or
by Act of Parliament " of which the Royal assent is a
necessary ingredient." Ibid p. 451.

This assent of the Crown, as essential to the validity
of the Acts of the Provincial Legislatures, has been ques-
tioned by the obiter dicta of some learned Judges, who
say that Her Majesty forms no constituent part of the
Provincial Legislatures as she does of the Dominion
Parliament. This denial of the legislative authority of
the Crown in Provincial legislation touches the validity
of all Provincial Acts since confederation, as the usual
form of the Provincial statutes is " Her Majesty, by and
with the advice, etc., enacts." "The legislative power

' ;.i

',\ '

•'I

•if;

■m

m
If

338

ONTARIO HIGH COUllT OF JUSTICE— M. O.

1S83

Cl.AUKK
V,

Union Fiiik
Insuhanck
Company.

Hodgins, (^.C,

(says Lord Hale) i.s lodged in tlio King, with the nssent
of the two Houses of Parliament:" 1 Hale's Juris. Ho.
Lds. 4: "The making of statutes is hy the king with the
assent of Parliament:" 1 Whitelock King's Writ, 406:
'• The king has the prerogative of giving his assent tosu'^h
[.■)!()] bills as his subjects, legally convened, present to
him, that is of giving them the force and sanction of a
law:" Bacon's Abr. tit. Prerog. 489. See also 4 Co. Ins.
24.

This is l)ut the conunon law on the legislative preroga-
tive of the Crown. A reference to the Imperial Acts
which gave legislative institutions to this Province prior
to the B. N. A. Act, will shew that the Provincial laws of
Upper Canada were to be made by " His iNfajesty, his
heirs and successors," (31 Geo. o c. 31), and of Canada by
" Her iMajesty her heirs or successors," (3 &; 4 Vict, c 35)
by and with the advice and consent of the other legisla-
tive bodies ; and these Imperial Acts in so far as they
recognise the legislative prerogative of the Crown in this
Province have not been repealed, but are substantiality
continued by sect. 129 of the B. N. A. Act.

The question, however, api-ears to have been deter-
mined in 1870 by the Judicial C>ommittee of the Privy
Council in Theherge v. Landrii (1) — which is binding on
all our Courts — where Lord Cairns, L. C, referring to an
Act of one of the Provincial Legislatures then under
review, held that it was an AcC which had been assented
to by the Crown, and to which the Crown therefore was
a party.

The B. N. A. Act created two separate and independent
governments with enumerated pnd therefore limited
parliamentary pow^^'-s. These dual governments within
their detinr 1 limits of jurisdiction now exercise the legis-
lative and executive powers previously vested in one

(1) 2 App. Cas. 102, 108; am: vol. 2, p. 1.

sscnt

, Ho.

h the

406:

3nt to
n of a
3. Ins.

ei'uga-
l Acts
J prior
laws of
sty, l>is
lada by
t. c 35)
legisla-
is they
m this
antially

dctcr-
Privy
dint^ on

\if to Ull

Tinder
isseuted
ore was

pendent
limited
1 within
|he legis-
in one

!.■

ONTARIO HIGH COURT OF JUSTICE— M. O.

frovernment ; and althoufdi both exist within the same 1^83
territorial limits, their powers are separate and distinct, Cr.AHKi;
and they act separately and independently of each other x'nion Fiuk
within their respective spheres. The powers of the legis- cvAn'-vNY.'
lative department of the Provincial Governments have jf^^^,,~7^, j^,
been defined by our Provincial Courts. The case of Re
Goodhue (1), decides that there is no limitation imposed
on the Provincial Leijislatures as regards the extent to
which they may affect i)rivate rigJits and matters of a
merely local and private nature m the Province ; and that
[317] as to such objects they can pass laws to the same
unlimited extent that the Imperial Parliament may in
the United Kingdom. In liefj'ina v. Hodye (2), it is stated
that the Domini(jn and Provincial Legislatures derive
their powers from the same .source ; and that " the power
to make laws in relation to the several classes of subjects,
legislation upon which is, by the Imperial Act, connnitted
exclusively to the Provincial Legislatures is as large ^id
complete as it is in the classes of suhjects committed b^'
enumeration of subjects to the Dominion Parliament.
The limits of the subjects of jurisdiction are prescribed ;
but within tho.se limits the authoritv to legislate is not
hmited." See also Hodye v. The (^ucen (8).

These cases shew that both the Dominion and the
Provincial Legislatures have plenary' powers of legislation
to the extent nece.s.sarj'' for the etlicient exercise of the
exclusive legislative authority of each ; and that they
therefore are sovereignties within the definitions given
in 1 Story's Coast, sect. 171 ; Phmips v. Eyre (4) ; and The
Queen v. Burnh (5). Each has authority to create cor-
porations ; and therefore a company incorporated by a
Provincial Legislature has, for the purposes of its business,

(1) 19 Grant 3GC>;antc vol. 1, p. .WO. (4) L, R. 6 (l B. 20.

(2) 7 App. Rep. 24(), 251; ante p. ICtJ. (5) 3 App. Cas. 889 ; imt Appeudi.x 1.

(3) 9 App. Cas. 117 ; ante p. 144.

■A S

[ i

■ ■ 1 -. f • ;

! '■

r-l:

'.1

iin

Mill

;:t!

^mm

340

ONTARIO HIGH COURT OF JUSTICE— M. 0.

Union Fiuk

iNSlliANCK

Company.
Hodgins, Q.C.

1883 the same corporate franchises aiid powers witliin the-
Clarke jurisdiction creating it, as a company incorporated by tlie
Imperial or the Di>minion Parliament, and may tiansact
its business outside the Pi'ovince wherever by comity or
otherwise its contracts are recognised.

This power to transact insurance business outside the
provincial jurisdiction creating such corporations is i-egu-
lated within Canada by the Act 40 Vict. c. 42 sect. 28,
which provides that companies incorpoi'ated by a Provin-
cial Legisiatui'e for carrying on the business of insurance
within a Province, may, under certain C(jnditions transact
such business throughout the Dominion. And the case of
C'dizeiif< Inxuvii nee Co. v. P(f,rsons (1), illustrates to some
extent the jurisdiction of the Provincial Legislatures over
companies incorjiorated liy the Imperial or Dominion
Parliaments.

[The remainder of the judgment i.. omitted, the same
not having reference to the constitutional question.]

(1) 7 M'V- Cn>. W>; unit vdl. 1, p. 205.

QUEBEC flOUnx OF REVIEW.

341

■ill

5' i

Mn th&
d by the
transact
:jmity or

side tlie

is regu-

sect. 28,

, Provin-

nsiirance

ti-ansact

le case of

; to some

ures over

dominion

the same
Ion.]

-t

COURT OF T-EVIEW.
The Hon. J. A. MoussEAfT, Atkjrney-Gexeral v. Bate.

[lirporled 27 L. C. Jurist 153.]

Letters Patent, proceediwjs ti> set anide — o~> Vict. c. 56, D.

Proceedings in the nature of a scire facias, to set aside Letters
Patent of invention issued under the Dominion Statute,
35 Vict. c. 2(3, canuut be instituted in the name of a Pnjvincial
Attorney-General, and can only be legally brought by the At-
torney-General of Canada.

This was a review of a judgment rendered by the
Superior Court at Montreal (Taschereau, J.) on the 1st of
December, 1882 (1).

The counsel for the plaintiff submitted the following
argument in review on the question as to the right of the
Provincial Attorney-General to sue :

In Con. Stat. Can. c. 34, s. 30, is found practically the
same provision as is contained in sect. 29 of the present
Act, except that under that Act only Upper and Lower
Canada were included, and there being no provision re-
quiring the patentee to elect domicile, the action might
be brought in either Province, whereas under the Act of
1.^72, the information must be laid before the Court of
the place where the patentee elected domicile.

The next Act to bo referred to is also a Statute of
United Canada, commonly called the Code of Civil Pi-o-
cedure of Lower Canada, Art. 103.5, The Attorney-Gen-
eral referred to in said article was necessarily the Attor-
nev-General of United Canada.

1883*
Jan. S3.

h rl

* Present:— Si COTTF, Touhaxck and R.M.vvn.r.E, J.T.
(1) Post, )). 34.').

342

QUEBEC COURT OF REVIEW.

1883

MOUSSKAU
i'.

Batk.
Argi'mknt.

I .

By sect. 18o of the B. N. A. Act it is provided as fol-
lows : — "Until the Legislature of Ontario or Quebec
otherwise provides, all rights, powei's, duties, functions,
responsibilities or authorities at the passing of this Act,
vested in or imposed on the Attorney-General, Solicitor-
General, etc., by any law, statute, or ordinance of U])per
Canada, Lower Canada, or Canada, and not repugnant to
this Act, shall be vested in or imposed on any officer to
be appointed by the Lieutenant-Governor for the dis-
charge of the same or any of them."

We may look in vain through the B. N. A. Act to dis-
cover anything repugnant to the position occupied Ijy
the Attorney-General in tliis case ; indeed se(..t. 92, sub-
sect. 14, is in direct confirmation of tlie right of the local
Attorney-General. If the taking of the present action is
not an act performed in the administration of justice, it
is difficult to see what it is. If the local Attorney-
General does not represent the Crown in matters relating
to the administration of justice under the ])atent law,
what reason can be given for his doing so under the crim-
inal law ? Tlie fact is that before the Courts of the Pro-
vince the Crown is represented and acts through the
Attorney-General of the Province: Attorney -General of
Ontario v. Niagara BriJge Company {!).

Does the Dominion Statute of 18f)8, c. 39, sect. 3, inter-
fere with the doctrine above laid down ? That Act does
not say that the Minister of Justice is to represent the
Crown in relation to all laws passed by the Dominion
Parliament, but only in relation to laws administered
under the authority of that Parliament, such, for example,
as require to be put in execution by Dominion Courts.
But the Patent Act is not sueh a law. It is administered
like the criminal law by the Provincial Courts. See,
also, the subsequent clause of the same section, where it

(1) 20 Grant, 34 ; nnti; vr.l. ], p. 813.

i)f

C^UEBEC COURT OF llEVIEW.

:Ui]

is provided that the Minister of Justice shall have the 18S3
regulation and conduct of all litigation for or against the mols.skau
Crown, or any public department, in respect of any sub- jj'.;,,,
jects within the authority or jurisdiction of the Dominion. vuiiuMi-NT
Tt is evident that the words litigation for or against tlie
Crown mean nothinir more than those cases where Mu>
Crown appears as an onlinary litigant witli riglits to
enforce in its own behalf and for its own benefit, or
where damages or remedies iiave accrued to the Crown
in conse(juence of the infraction of some law of the
Dominion, If this section means more than this, it is
contrary to sect. 135 of the B, N. A. Act and unconstiiu-
tional.

The counsel of the defendant, with a view to obtain a
confirmation of the judgment appealed from on its merits,
ac(|uiesced in the argument of the plaintiff's counsel as
to the mere right of the plaintiff to institute such a pro-
ceeding as the present one.

The following was the judgment in Review : — [lo6]

[Tranddfed.] ' - '

Considering tluat bv the Statute of Canada of 186S,
81 Vict. c. 'id, it is enacted that the Minister of Justice
tihall be ex opiclo Attorney-Ceiieral of Her Majesty in
Canada, having the superintendence of all matters con-
nected with the administration ol justice in Canada not
being within the jurisdiction of the Governments which
compose it ;

Considering that it is, moreover, enacteil by the same
statute that the Attorney-General of Canada shall dis-
charge the duties which belong to the Attorney-General
of England, and also the iluties which, by the laws of the
ditierent Provinces, belong to the Attoniey-General of
each Province up to the period when the B. N. A. Act.

i"- 'i

■' '-,1

•I'T

■m

344

QUEBEC COURT OF REVIEW.

1883
r.

B.VTK.

JcnriMKNT.

1867, came into etfect, wMch laws ought to be adminis-
tered and enforced by the Government of the Dominion,
that he shall re<:fulate and conduct all litigation between
the Government or any public department concerning
subjects which are within the authority or jurisdiction
of the Dominion ;

Considering that in the present case the litigation is
respecting a patent for an invention granted to the said
Bate by the Minister of Agriculture, one of the public
departments of Canada, and to wdiich the said Holman
objects in conformity Avith the provisions of the Statute
of Canada, c. '55 (1) ot 1872, and as is allowed by sect. 29 ;

Considering that by the Statute of 1872, sect. 52, of c.
34, of the Consolidated Statutes of the former Province of
Canada concerning patents of invention, and all laws and
other Acts relating to patents of invention have been and
are rej^ealed ;

Considering that legislative authority over patents of
invention is exclusively within tlie jiirisdiction and
powers of the Federal Parlian)ent and Government, and
that by the Act of 18G8, alread}- cited, all that can relate
to the interpretation of a Fedei'al Statute and of the
Statute relating to patents of invention is within the
province and jurisdiction of the department of justice of
the Federal Government, it f(>llows that the writ of scire
/rtc'ia.s of which sect. 21) of the Statute of 1872 speaks,
should issue under the fiat of the Attorney-General of
Canada, and not of tlie Attorney-General of the Province
of Quebec ;

Considering, also, that by the Act of 1808 the Parlia-
ment of Canada has motlified and changed in conformity
with the B. N. A. Act, 18G7, the provisions of sects. 129,
130, 134 and 135 of that Act concerning certain powers
to be exercised bv the law officers of the Provinces so far

(1) Tliu Act rcfi-rred to is 35 Yift. c. '_'().

►

idrainis-
3minion,
between
icerning
isdiction

Ration is
the said
3 public
Holiiian
Statute
sect. 29 ;
52, of c.
tvince of
aws and
)cen and

tents of

on and

cut, and

,n relate

of the

lin the

stice of

of scire

speaks,

leral of

rovince

Parlia-

formity
its. 129.
powers
s so far

QUEBEC COURT OF REVIEW.

345

as the Parliament of Canada should not have otherwise
provided, and that by reason of this legislation these
powers and functions cannot be exercised except in terms
of the laws promulgated by the Parliament of Canada ;

'''he Coui-t adjudges and declares that the writ of scire
facias issued in this case under the fiat of the Attorney-
General of the Province of Quebec has been wrongly issued
and contrary to the provisions of law in that behalf ; con-
firms on this ground, the judguient of the Superior Court of
the 1st of December, 1882, without adjudging and decid-
ing on the matters pleaded by the contestant and the
other grounds set forth in the judgment in question;

Reserves to the said plaintiff his right to proceed [157]
as he may be advised in order to obtain the fiat of the
officer appointed by the statute for issuing a writ of scire
fnc'ias ;

Orders the v'aintifF to pay the costs incurred iu the
Court of Review.

Archihald X- McCormich, for plaintiff.

Church (C- Co., for defendant.

JriMJMEXT IX THE SUPERIOR CoiKT, {hi'finr wJiich, thr ,sin7 came
oriyinaJlif, so far a.i the same relaf>'!f to the Constitutional ri}testio)i).

[Tmn.stafr.q.

(licpovS'd ;i7 L. C. J'irist, 153.)

Taschereau, J. : —

Cuusidering that tlie patent of iiivuiition which it is sought to
.set aside in this case was grau'el h\ tho said Commissioner of
Patents, acting for tlie (Tovornnn'Ut '4' Canada, under the provisions
of tl)o Patent Act of 1872, and its amendraonts ; that the said Act
sects. 21), ;50 and 31) provides for the pr>v'eediiig:i to l)e taken, for
the ])urpo8e of setting aside patents of invention granted under the

18S3
rdorwsKAt.-

V.
]jATK.

JrnoMKNT.

11 \

■■pa
■i

'W\

QUKMEC COURT OF REVIEW.

.MoUSSKAt

Batio.

Sup. C,
C.iiu'ljte.

1.8.>J cautli(jrity of its provisionc, and gives jurisdictinn in such matter to

the Superior Court of the Province of Quebec, when the patentee
lias his domicile in tlie said Province, which Court is then called on
to enforce a Inw exclusively federal ; that by the U. N. A. Act, [154]
18G7, patents of invention and all legislation connected thercAvith, are
under the excluHive control and jurisdiction of the Parliament of
Tasclu.-n-:ui,J. Canada; that b.v the Act 31 Vict. c. 3!), the: Attorney-General of
Canada is alone competent to regulate and conduct all litigation
for or iigainst the Crown, concerning the subjects which come
under the authority or jurisdiction of the Dominion, and conse-
(juently was alone coiniieteut to take action for the purpose of
causing the setting aside of a patent of invention granted by the
fjovernment of the Dominicn in virtue of a federal law ;

Considering that the Attorney-Ueneral of tlie Province of Quebec,
by means of a writ of scire f<iria:i, can only demand the setting asiile
of letters patent issued by the Government of the said Province and
under the authoriiy of Provincial laws ;

Considering that a patent of invention can only be set aside by
scire fdcian absolutely and throughout the whole Dominion, and not
as to one Province alone, and that so (in addition to the above
reasons) the Attorney-Generr^ of a Province would be a'together
unal)le to apply to the tribunals of this Province for the purp se of
demanding such a setting aside of a patent which would take effect
throughout all Canada ;

The Court sustains the defence, annuls and sets a-ide the writ of
scire facim issued in this case and non-suits the plaintiff; and as to
the costs of defence incurred by the said defendant, the Court recom-
mends that they be paid to him by the proper person. (1)

(1) [In B. v. Pattce, 5 P. R. (Ont.)
{Jan. 5, 1871), on an ajijilicatiun to
set aside a writ of sci. fa., i.ssued to
rescind a [latent, it was lield by the
present Master in Chambers for
Ontaric (Mr. Dalton, Q. C), then
Ch^rk of tlie Crown and Pleas of
the Court of (Queen's Bench, sitting
as a Judge in Chambers, that the
Attorney-tieneral of Ontario was the
proper authority to grant the. /f«< in*
Micli a case. Tlie following is the
judgment, so far as relates to the
coustitntional question : —

After deciding that a tiat for the

issue of the writ was necessary, the
judgment continues, p. 206:

It may provoke a smile that an
otficer of the Court, in deciding a
matter of practice, should incident-
ally consider a quPHtion under our
constitution, which is of some im-
portance ill itself. :xiid is a part of
larger (piestions. It is of little
matter, however, where it may be-
gin ; it must come to the decision of
the Court. I was told, wlien I sug-
gested the question on the argument,
that it was very doubtful whether the
Minister of Justice or the Attorni'y-

QUEHKC COrUT OF KKVIKW.

'^47

:<:;v

General for Ontario be the i>ro]ier
authority to grant a fiat in sncli a
case. I must, therefore, HUfipiisc it
is doubtful, though I myself cannot
see the grouu<Is for doubt. I cannot
think that two authorities exist, r/</(rr
of whom may grant it. .Some one
authority, and one imlii, nmst answer
here the position of the Attorney-
General in England in ri'spt-ct of this
matter.

The B. N. A. Act, sect. !)2, enacts
that, "Int'ich Province the Legis
lature may exclusively make laws in
relation to matters coming within
the classes of subjects next hercin-
fifttr cmimcrati'd, that is to say (after
twelve oth(!r heads) — 1.3. Property
and civil rights in t!ie Province;
l-l. The administration of justice in
the I'rovince, including tlie constitu-
tion, maintenance, and organization
of Provincial CNnirts, both of civil
and of criminal jurisdicti'iii, and in-
cluding jn'ocedure in civil matters in
those Courts."

These sections express the ])owers
of the Legislature of Ontario.

[297] Tiien, as to the Executive,
sect. 135 enacts that, " Until the
Legislatin-o of Ontario or (Quebec
otherwise provides, all rights, powers,
duties, function.s, responsibilities, or
authorities, at the passing of this
Act, vested in or imposed on tlie
Attorney-General, Solicitor-General,
Secretary and Registrir of the Pro-
vince of Canada, ^linister of Finance,
Commissioner of Crown Lan<ls, Coni-
mis.sioner of Public Works, and
^linister of Agriculture and Re-
ceiver-General, by any law, statute,
or ordinance of [Jp|ierC;inadi, Lower
Canada, or Canada, and not repug-
nant to this Act, shall be vested in
or imposed on any officer to be ap-
pointed by the Lieutenant-Governor
for the discharge of the same, or any
of tliem." So that, as is consistent

mois.seal'
Batk.

and natural, the executive and legis- 1871

lative finictions of tlie Goverinnent
of Ontario seem to be co-extensive.

The worils of this statute have Vieen
well weighed. But what definition
of "pi-ojierty and civil rights" can iv. t: P.vttkk.
exclude tlie right of enforcing a civil
remedy in the Courts? To lawj'crs,
that seems the practical jiroof and
test of all right ; w ithout it, at any
rate, no other right is of any real
value. And. finther, there i.-- attri-
buti'd to thi' li'cal jurisdiL'ti<ni '"the
administration of justice in the Pro-
vince, . , . including jirocedure
in civil matters." Tlien if the legis-
lative and executive jiowers, as to
"l)rci|i('rty and civil riglits in the
Province," and "the aclministration
of justice," and as to civil proceed-
ings ni tile Courts, are in the Govern-
ment of Ontario, can it be thought
that any other authority is for the
prtjseiit purpose indicated tlinn that
of an otiicer of (.)ntario resi)onsible
to its Legislature. For, let it be
borne in mind, that he who has the
discretion to grant, has also the dis-
cretion to withliold, and that it is
<mly by scire fricias that a subject
in Ontario, aggrieved by a patent
wrongly issued, can seek the remedy
of its avoidance.

I desire not to amplify ; but other
reasons, in and out of the Act, point
to the concUision tliat the Attorney-
General of Ontario is th.e anthor'ty
that must grant or ref ise thv fiat
which is necessary to the real plain-
tiff here to pursue thir remedy. I
shall not be understood as si)eaking
of the case where the Crown itself
[298] seeks to avoid a patent ; T sjioak
only of the jiresent case, where a
subject domiciled in Ontario seeks
to avail himself of the ]ieculiar jn-ivi-
leges of tlie Crov.'n to assert his cjwn
private interests.]

i ! '«

. i

}

iii

:ii'

iiifi-f

348

QUEUEC SUPERIOK (JOUIIT.

18M3
June 20,

SUPERIOR COURT.
Griffith Petitioner ;

AND

Rioux ef nl ReKpondcnti.

[liepurti-d 6 L<-<irtI Knrs, JIL]
Intoxicoting Liiiuors — Pruhibitioti — TcmiKnDice Act of ISGJf.

A Proviiuial Legislature caniifit repeal tlidse sections of the
Tomperanco Act of 1804, which relate to the prohibition of
the sale of iutoxioatiny liiiuors.

Brooks, J. : —

This is a petition by Edsvard Oriffith, asking that
res[)onde!its, George E. Rioux, District Magistrate, and
Allan D. G. Hazel, complainant, be restrained from pro-
ceeding with a prosecution brought before said District
Magistrate in November, 18!S2, by .'^aid complainant Hazel,
agai. st said petitioner, for having on the LSth September,
1882, sold intoxicating licpiors in quantity less than live
gallons, conti-ary to the Temperjance Act of 18G4, 27 tic
28 Vict. c. 18 (Dunkin Act), and asking the penalty pre-
scribed by that Act, of $50; alleging :

l.st. That said Act of 1864, was not in force in Ricli-
mond, and no such penalty as 850 existed. That the only
penalty was S75, provided by Quebec License Act of
1878.

2nd. That petitioner had a shop license under hand of
Revenue Inspector.

'3rd. That if the Temperance Act of 1864 was ever in
force in Richmond, it had ceased, by reason of incorpora-
tion of the Town of Richmond, under special charter, 45
Vict, c, 103, to form part of the territory of County of

QUEBEC SUPERIOR COURT.

;U9

Kiehnionil, ceased to be bound by tlie by-laws of said
County, and therefore the Tenii)crance Act not in force
tliere. That respondent llioux had no jurisdiction to try
the case, but had illegally proceeded to hear the evidence,
and was about to render judgment, and was about to
declare the License Act of ISTO, so far as it repeals the
27 6z 28 Vict. c. IS, and sect. lOSG of Municipal code, so
fur as it repeals said 27 & 28 Vict, c, LS, nllra vircf<.

The petitioner alleges, besides the repeal of all those
portions of 27 & 28 Vict. c. 18, by Quebec License Act,
']l Vict. c. 2, sect. 12, under which the prosecution was
brought, that he had a perfect right to sell, having obtained
a shop license from the Revenue Inspector of the District ;
that in March, 1877, a by-law was enacted under Dunkin
Act, so called, by which it was pretended that the sale of
intoxicating liquors was prohibited within the limits of
Richmond County, then including tlie now Town of Kieh-
mond, but on the 27th May, 1882, Richmond received
special charter from the Legislature of Quebec, 45 Vict,
c. 103, and since then, it has formed no portion of the
(.'ounty, and the said by-law has had no force there ; that
by its charter, Richmond had specially granted to it, the
right to restrain, regulate or prohibit the traffic in liquor,
and on 19th June, passed a by-law, regulating the
license fee, and petitioner had paid the same as well as the
government fees, and obtained a shop license, and that
lespondent Rioux had no right or jiu'isdiction to question
the validity of repealing statutes, or investigate said case.

Respondent Rioux appeared and declared " qu'il s'en
rapporte a j ustice."

Respondent Hazel j)ersisted in Ids right to proceed
under Temperance Act, alleging that this Act had never
been repealed, i. e., those portions under which he was
])roceeding, and that any action by the Legislature of
Quebec, so far as it pretended to repeal any of said Act,

1S83

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l'roi>ks, J,

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1883

(Jl'.IKFITH
V.

Rioux.
Brooks, J.

I; '

850

QUEBEC SUPERIOR COURT.

was ultra vires; that it was specially provided liy the
charter of Richmond Town, 45 Vict. c. 10-S, s. .S, that "the
by-laws, orders, rolls and municipal Acts, which governed
the territory heretofore forming the Village of Richmond,
shall continue in force until they are amended, repealed
or replaced 1)}^ the Town Council to be hereafter elected."

That no repeal of the Temperance Act had been had,
and Richmond Tov.*n had no right, by by-law or otherwise,
to authorize the issuing of licenses, or grant certificates,
and their action was null in that i-espect; that the "Town
Council to be hereafter elected," could not be elected under
said Act until January, 1888, while the offence committed
[212] was in November, 1882 ; that respondent Rioux did
not exceed his jurisdiction in hearing said case; that
license had no effect on i>rosecution : 27 &- 28 Vict. c. 18,
s. 1 2, sub-s. 2.

Petitioner Griffith ff led amongst other documents, copies
of license by-law of the Town of Richmond of June 19th,
1882, ityled License By-law, authorizing collection of
certain liceu'^e fees, fixing $G0 as fee to be paid for shop
licenses. And the by-law of County Council, March 14th,
1877, prohibiting, under Temperance Act, sale of liquors
in said County, with certificate of approval thereof on
l!Jth April, 1877, l)y municipal electors.

No evidence is taken, but the" judgment is souglit upon
the law as applicable to the cjise ; and at the argument, it
was stated by both petitioner and respondent that
they desired a judgment upon the point as to the
power of the Legislature to repeal the provisions of
the Temperance Act, providing penalty and proceduie
for illicit sale of intoxicating liquors, and upon the power
of the Legislature to do indirectly, i.e., by granting the
charter 45 Vict. c. 103, what, it was alleged, they could
not do directly, confer upon the Town oi Richmond, the
right to restrain, regulate or prohibit the sale of any

QUEHEO SUPKRIOR COUllT.

:^-A

spirituous, alcoholic, or intoxicating li(iuors within the
limits of the Town ; it being urged by petitioner that the
by-luws of the Council of the 19th June, 1882, regulating
sale, i.e., fixing fees implied under their charter, repealed
the County by-law, prohibiting the sale.
The first and main question is :

Had the Looal Legislature a right to enact .S4 Vict. c.
2, s. 107, by which those parts of 27 & 28 Vict. c. 18,
which provide for penalties and procedure to enforce them,
were repealed ?

In order to determine this, it is necessary lo examine
the provisions of the B. N. A. Act, and see if this power
could come under the class of subjects in sect. 92, with
regard to which the Legislature was empowered exclu-
sivel}' to make laws. If so, it must be under sub-sects. 8,
!), 13 or IG. • . ••

The Temperance Act being in force at the time of con-
federation, remained so. until " repealed, abolished, or
altered by the Parliament of Canada, or by the Legislature
of the respective Province, according to the authority
of the Parliament, or of that Legislature under this Act."
(Sect. 129 B. N. A. Act.) It is contended that by the
decision in Q.B., 1882, Suite v. The Corporation of Ihree
Rivera (1), in which Mr. Justice Ramsay declared: " We
hold that, under a proper interpretation of sub-sect. 8, the
right to pass a prohibitory liquor hiAV for the purposes of
municipal institutions, has been reserved to the Local
Legislatures by the B. N. A. Act," it follows that the
Legislature had the power to repeal the Temperance Act,
but this, I think, does not at all follow, even if for the pur-
poses of municipal institutions, the Legislature could pro-
hibit. But it must be remarked that this case was that
of Three Rivers incorporated prior to confederation i.e.,
in 1857, and which by its charter had certain special

(1) 5 L. N. 330 ; ante vol. 2, p. 280.

1883

Griffith

r.
Rioux.

Brooks, .L

■^

1883

Gkikfith

Rioix.

BrnokH, J.

1 ^

' 1

; i

i : '.
1

i '

352

QUEBEC SUPERIOR COURT.

powers as to restrictions and conditions under which the
inspectors should grant licenses, and so far as report goes
no prohibition was actually made, but only an amendment
to a by-law, fixing the fees. Can they repeal a law
passed by the late Province of Canada, which declared
what was the penalty for illicit sale, and prescribed the
mode in which its payment should be enforced ?

As against this decision we have the declaration of the
Chief Justice of the Supreme Court in the case of the
City of Fredericfon (1). " When I had the honour to be
Chief Justice of New Brunswick, the question of the right
of tlie Locfil Legislature to pass laws prohibiting the sale
or traffic in intoxicating liquors, came squarely before the
Supreme Court of that Province, and that Court in the
case of ReguKi v. The Justices of King's County (2),
unanimously held that under the B. N. A. Act, the Local
Legislature hud no power or authority to prohibit the sale
of intoxicating liquors, and declared the Act passed with
that intent, ulti'ct vires, and therefore, unconstitutional.
I have carefully reconsidered the judgment then pro-
nounced, and I have not had the least doubt raised in my
mind as to the soundness of the conclusion at which the
Court arrived on that occasion. I then thought the
Local Legislature had not the power to prohibit ; I think
the same now."

In this judgment concurred Fournicr, Taschereau and
Gwynne, JJ., Henry, J., dissenting.

Taschereau, J., says; p. 5o7: "It is clear that the Canada
Temperance Act, 1878, could not be enacted by the Pio-
vincial Legislatures, for the simple reason that they have
only the powers that are expressly given them by the
[213] B. N. A. Act, and that the said B. N. A. Act does
not give them the power to effect such legislation."

(1) .3 Can. S.C.R. 505; ante vol. 2, p. 27.

(2) 2 Pugi-ley 535; ante vol. 2, p. 499.

lereau and

QUEBEC SUPERIOR COURT.

353

It would seem that if they could not pass the Canada
Temperance Act of 1878, they could not have passed that
of 1864, and Mr. Justice Ramsay says in Suite v. Three
Rivera (1), " I do not see how a Legislature has power to
repeal what it cannot re-enact."

In the present instance they have repealed portions of
the Act of 1804, " in so far as relate to matters within
this Province and matters within the control of the
Legislature of Quebec," and have made new provisions,
increasing the penalty.

Does this come within either sub-sects. 8 or 9 of sect. 92
of the B. N. A. Act ?

The legislation is certainly not municipwl, because it
merely says that for a violation of the By-law prohibit-
ing altogether the sale, the penalty shall be for selling
without a license, $75, instead of $50.

It cannot be contended that this is given for the pur-
poses of municipal institutions, as the only way in which
it could be so construed would be if the prosecution had
been in the name of the municipality, but here it is by a
private individual.

Again, it cannot be said to come under sub-sect. 9, as
fines and penalties cannot be imposed " for the purpose of
raising a revenue for provincial, local or municipal pur-
poses."

It is not a matter of police regulation : See Poulln v.
The Corporation of Quebec. Chief Justice Meredith says,
and his judgment was sustained in appeal (2), " Consider-
ing that, although the Parliament of Canada, under the
power given to it to regulate trade and commerce, alone
has the power to prohibit the trade in intoxicating liquors,
yet that the Provincial Legislatures, under the power
given to them, may, for the preservation of good order in

(1) 5 L. N. 330 ; ante vol. 2, p. 280.

(2) 9 Can. S. C. R 185 ; 7 Q. L. R. .337 ; ante, p. 230.

1883
Griffith

Rioux.
Brooku, J,

f^':^::'i

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1883

Grikfith

Rioux.

Brooks, J.

i ] 'V

35-1

QUEnKC SUPERIOR COURT.

the municipalities which they are empowered to establish,
and which are under their control, make reasonable police
regulations, although ,«uch regulations may, to some ex-
tent, interfere with the sale of spirituous liqucn-s."

Ramsay, J., said : " It seems to me that this is purely
a matter of police re^^ulation, and consequently it is
within the powers of municipal corporations, and that
the exercise of such a power cannot be considered as being
a restriction of trade and commerce."

Caron, J., held in Hurt v. The Corporation of the Count)/
of Missisquoi (1), " Que, comma les pouvoirs accordes aux
conseils de comte, par les dix premieres .sections de I'Acte
de Tempt^rance de 18G4, de prohiber la vente des boissons
enivrantes, concernent I'industrie et le commerce, elles ne
peuvent etre ni modifiees, ni abrogdes par la legislature
de la Province de Quebec."

Upon this point there would seem to be little doubt.
Section 91 of B. N. A. Act, sub-sect. 2, confers exclusively
the regulation of trade and commerce upon Parliament.

The Supreme Court of Canada decided, in the case of
the City of Fredericton (2), that unde- sub-sect. 2 of
sect. 91 of H. N. A. Act, 1HG7, in regulation of trade and
commerce, the Parliament of Canada alone has the power
of prohibiting the traffic in intoxicating liquors in the
Dominion or in any part of it.

In Jlu8.sell V. The Queen (3) the Privy Council, in
declaring the Temperance Act of 1878 within the power
of Parliament, say : " Their Lordships having come to
the conclusion that the Act in question does not fall
within any of the classes of subjects assigned exclusively
to the Provincial Legislatures, it becomes unnecessary to
discuss the further -(piestion, whether its provisions also
fall within any of the classes of subjects enumerated in

(1) 3Q. L. R. 170; ante, vol. 2, p. 383. (2)3Can. S. C. R. 505; aiUc, vol. 2. p. 27.
(3) 7 Ai.p. CaB. 829; ante, vol. 2, p. 12.

QUKBEC SUPPnilOR COUKT.

3o;

section 91. In abstaining from thi.s discussion, they must
not be understood an intiniatini^ any dissent from the
opinion of the Chief Justice of the Supreme Court of
Canada and the other Judges, who held tliat the Act, as a
(••eneral rejjulation of the traffic in intoxicating li(nior.s
throughout the Dominion, fell within the class of subject,
" the regulation of trade and commerce," enumerated in
that section, and was, on that ground, a valid exercise of
the legislative power of Canada."

The Provincial Legislatures have only such powers as
have been conferred upon thera by the B. N. A. Act, and
the whole of the balance or residuum is in the Parliament
of Canada.

The Privy Council has declared that Parliament has
the riirht to legislate for the whole Dominion on the
subject.

The Supreme Court of Canada has declared that Piii 11a-
uient has not only the right but the sole right to prohibit
the sale of intoxicating liquors in the Dominion or in any
[214] part of it. It is conceded that the Legislature
cannot repeal what it cannot re-enact.

The power to prohibit is admittedly not exclusively
conferred upon the Legislature, and not being exclusively
given under the B. N. A. Act to the Legislature, Parlia-
ment can legislate.

The Canada Temperance Act, 1864, passed by Old
Canada, could only be repealed by Parliament, as the first
10 sections have been by Canada Temperance xVct, 1878.
If there is any conflict of authority as to wh(j shall legis-
late upon the subject, the Legislature must yield to
Parliament. Parliament has legislated. It has declared
as to what municipalities the Act of 18G4 is repealed, i.e.
the first ten sections. It has provided where it is not in
force, new machinery for prohibiting ; it has provided pen-
alties for infraction of the law and procedure to enforce,

1883

(JUIFKITH
V.

Rioux.
liniiikM, J.

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1883

Gkikkith

RlOLX.

Brooks. J.

356

QUEBEC SUPERIOR COURT.

and if it can do this, which the Privy Council has declared
it can — the Local Legislature cannot have concurrent
powers. Our Parliament must be supreme. Lord
Carnarvon said in the discussion of his bill before
the House of Lords : " That the authority of the Central
Parliament will prevail whenever it may come in
conflict with the Local Legislature, and any residue of
legislation, if any, unprovided for in the specific classifica-
tion, will belong to the central body." If this power
belongs to Parliament, and it does, if it is not exclusively
given to the Legislature, which is not pretended, the
Legislature has, by License Act and its amendments, and
by Municipal Code, Art. 1086, exceeded its authority.

I cannot, in deference to the decisions in this matter,
declare otherwise than that the amendments to the Tem-
perance Act of 1864 are ultra vires.

[The remainder of the judgment is omitted, the same
not having reference to the constitutional question.]

//. B. Broicn for petitioner.
J. J. Maclaren for respondiiits.

li
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QUEBEC! SUPKUIOU COUIiT.

357

SUPERIOR COURT.
Ex PARTE Pillow.

[Repwted 27 L. C. Jurid, 2l(].]

Nuisance, Power of leyidatiou reupcdimj — Mnitiripal Itmiitntions.

The power of the Parliament of Canatla to ciiiict a general law of
nuisances, as incident to its right to legislate as to criminal law,
is not inconapatible with a right in the Provincial Legislatures
to authorize municiptal corjjorations to pa-ss by-laws against
nuisances hurtful to public heiilth, as incidental to municipal
institutions.

This was the merits of a motion to quash a conviction
niado on the ?9th November, 1882.

The petitioners were occupants of a manufactory of
cut nails, and it was complained that the chimney sent forth
smok'j in such quantity as to be a nuisance hurtful to
public health and safety, and that they refused to remove
and abate the nuisance, contrary to the by-law of the
city of Montreal, No. 130.

The petitioners pleaded that the city had no jurisdic-
tion to enact the by-law, and did not enact it in virtue of
any competent legislative authority. The petitioners
were convicted.

TORR.VNCE. J.: —

The main question as put by the petitioners is, — Had
the Legislature of Quebec power to authorize the city of
Montreal to pass the by-law ? Such power, if it exists,
must be derived from the sects. 91 and 92 of the Ccmfed-
eration Act, 1867. Sect. 91 enacts that " the exclusive
legislative authority of the Parliament of Canada extmids

1883

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1888 to" " tlie ciinniml Inw"; "niicl any matter coming within
any of the classes of suitjects enumerated in tiiis section
shall not be deemed to come within the class oi" matters
Torrancf, J. qj! ^ \^^QQ] ,,,• private nature, comprised in the enumeration
of the classes of subjects Ijy this Act assigned exclusively
to the Legislatures of the Provinces." Sect. 92 says that
" in each Province the Legislature \x\\\j exclusively make
hiws in relation to " " municipal institutions in the Pro-
vince."

The petitioner contends that among the subjects as-
signed exclusively to the Parliament of Canada is the [217]
criminal law, and that the subject matter of the by-law —
a nuisance — is a matter of criminal law, referring to the
text books on the subject. The city, on the other hand,
contends that though the Federal Parliament has juris-
diction over nuisances in general, it does not follow that
the local Legislatures cannot prohibit insalubrious or
dangerous establishments in a Province, or that they can-
not confer upon municipalities the right of self -protection
and of protecting the citizens of a locality against the
dangers of similar industries.

The by-law was niade under 37 Vict. c. 51, s. 123, sub-
sect. 2 (Quebec) Charter of Montreal, and 42-43 Vi3t. c.
53, s. 84, sub-sect. 8. The counsel for tlie city says that
this power is comprised in the words " municipal institu-
tions." If tlie city could not deal with these matters
under its charter, the greater part of the municipal regu-
lations would be ultra rire*', and the municipalities would
be incapable of repressing abuses atieoting health or the
security of citizens, and the words "municipal institu-
tions" would have no meaning.

The discussions which have already taken place in our
Courts respecting the liquor laws throw a good deal of
light on the respective powers of the Dominion and Pro-
vincial Legislatures. In Suite v. The Corporatioi) oj

QUEBEC SUPERIOR COUllT.

359

Thri'c Rivers (1) it was held that tlic power of the
Dominion Legislature to pass a general prohil/itory lifpior
law, as incitlent to its right to legislate as to public
wrongs, is not iiicompatihle with a right in the Provincial
Legislatures to ])ass prohibitory liquor laws as incident
to municipal institutions; and in the case of Paid in v.
The Citi/ of Quebec (2) Mr. Justice Tessier very perti-
nently asks the question, is it not part of the municipal
institutions to make disciplinary and police reg\dations to
prevent disorder on Sunday and at night, by compelling
tavern and saloon keepers to keep their drinking j)laces
closed during that time ? Can there be any question
as to the power of our Local Legislature, or even our
municipal corporation, to prevent the sale and storage of
powder, except in certain places, and with certain precau-
tions for the safety of the public ? And, yet, this is a
matter of trade like any other.

I am justified in concluding that the power of the
Dominion Parliament to pass a general law of nuisances
as incident to its right to legislate as to public wrongs,
is not incompatible with a right in the Provincial Legis-
latures to pass the clause authorizing by-law 130 as
incidental to municipal institutions.

Macmaster, Hutchi nson <i' Weir, for petitioners.

li. Roy, Q.C., for respondent.

lss;»

F.X PAllTK
I'lI.I.oW.

iirr.iiicc, J.

(1) 5 L. N 330; ante, vol. 2, p. 280.

(2) 7 Q. L. R. 337 ; ante, p. 230.

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360

yUEBEC SUPERIOR COURT,

SUPERIOR COURT.

MOLSUN V. ClIAPLKAU.

[Rfparhil (1 Le(jal News, 222.]

Prtmnciul Executive — Smvrcign Authoritif.

The Members of the Executive Council of a Province, under the
B.N. A. Act, represent the Sovereign, and cannot be sued in
the Civil Courts of the Province for acts performed by them
in the discharge of their official duty.

[Translated,]

Papineau, J.: —

The plaintiff against whom proceedings have been
taken for expropriating certain lands under the Quebec
Railway Act, 1880, sues the Hon. J. A. Chapleau and the
Hon. W. W. Lynch, the former as past Commissioner and
the latter as the present Railway Commissioner of the
Province of Quebec, as well as Mes-sra. Simard, Hutchison,,
and Brown, who have acted as arbitrators in the expro-
priation proceedings, for the purpose of causing the award
of the arbitrators to be set aside and new expropriation
proceedings ordered.

The defendants, the Hon. J. A. Chapleau and W. W.
Lynch, except to the jurisdiction on the ground that they
are improperly brought before this Court.

1. Because they are sued in their character of Quebec
Railway Commissioners only, and as such they are not
subject to the jurisdiction of this Court unless in case of
misdemeanour or of crimes, of v/hich there is no question
in the case.

2. Because in this character they are members of the
Executive Council and advisei's of the chief of the State,^
the Lieutenant-Governor of the Province, and as such are

QUEBEC SUl'EKIOR COURT.

aoi

only the agents of the Government and responsible to
the Lieutenant-Governor and the Legislature alone.

3. That it follows from the statement of the plaintiff,
that it is in the name of Her Majesty our Sovereign, that
these two defendants have performed the acts of which
the plaintiff complains and that they cannot be brought
before this Court for acts in which they have; been only
the advisers and agents of Her Majesty.

The plaintifl' replies to this exception that these two
'lefondants have not acted in the name oi J 1 or Majesty in
the circumstances stated in his declarafii»ii ; that these
expropriation proceedings which hn'^ • givf n rise t,; the
prosentproceedings,having been commenced by me former
aiui continued by the latter, these twf> d fondants are
triable by this Court under the circumstances disclosed in
the declaration, which is only the result of tlie proceedings
commenced by the said Hon. J. A. Chapleau, and an inci-
dent of these proceedings become necessary in order to
their proper termination.

It is established by plaintiffs exhibit No. 10 (produced
in the package of Exhibits No. 1245 between the same
parties) that the expropriation proceedings were com-
menced by the said Hon. J. A. Chapleau officially in the
name of Her Majesty.

The defendants have cited in support of their conten-
tions the case of Church v. Middlewlsi^ (1); Gidley v.
Falmerston (2); Todd's Parliamentary Government, vol.
1, p. 291) et seq.; Dickson v. Comhermere (3); Broom's
Constitutional Law, pp. 241 and 617 ; Unwin v. Woheley
[223] (4); Macbeatk v. naldhnaad (5); Attorney General
V. Mkldlem'isa (6); Mercer v. The Attorney General of
Ontario (7).

1SH3

MOI.SDN

ClUl'I-KAlI.

I*ii|iincnii, •!.

(1) 21 L. C. Jurist, 319.

(2) ^ B. & B. 275.

(3) 3 F. & F. 527.

(4) 1 T. R. 674.

(5) 1 T. R. 172.

(6) 19 L. C. Jurist, pp. 253, 256.

(7) 5 Can. S.C.R. 538 ; ante p. 1.

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362

QPEBEC SUPERIOR COURT.

pi:' :

1883

MOLHON
V.

Chaplka'j.
Papineau, J.

The plaiuti^r maintains that the precedents cited are
not applical;)le to the present case for several reasons {a)
because in the cases of Hfddimand and Palinerston the
defendants were sued personally for acts done in their
character of agents of Her Majesty, while in the present
case the defendants, Chapleau and Lynch, are sued, not per-
sonally, but as commissioners and for acts done by them in
that chai"acter, and that they are a qiiani corporation, (b)
Because Haldimand and Pahnerston were really repre-
sentatives of Her Majesty, while Messrs. Chapleau and
Lynch were not ; that Her Majesty the Queen is in her
proper person, and by her representative, the Governor-
General, an integral part of the federal Parliament, but
that she does not personally or by her representative
form part of the Legislature of the Province of Quebec;
that this intentional exclusion of Her Majesty from the
local Government of the Provinces which compose the
Union formed in virtue of the B.N.A. Act, 1867, is plain to
every attentive reader of this Act of the Imperial Parlia-
ment. Thus, the third and fourth paragraphs of the pre-
amble of that Act deal not with a federation of the old
Provinces, but purely and simply with the union of the
Provinces. Section 3 speaks of one Dominion. The fourth
says that the Union shall be formed ; the Union shall be
declared to have taken effect; and section 5, " Canada
.shall be divided into four Provinces, named Ontario,
Quebec, Nova Scotia, and New Brunswick." The Domi-
nion is a new creation of the law, and it is divided into
four Provinces at the moment of its creation.

Is it a question of the distribution of powers ? Sect.
9: "The Executive Government and authority of and
over Canada is hereby declared to continue and be vested
in the Queen."" The Chief Executive Otiicer called Gov-
ernor-General or Administrator carries on the Govern-
ment in the name of the Queen (Sect. 10). His Coun-

QUEBEC SUPEHIOR COURT.

803

cil is styled the Qiieen's Privy Council for Canada
(Sect. 11). In a word all the sections of this article 3
[" Executive Power"] up to section 10 inclusive, shew the
Queen as retaining, with respect to Canada, the attributes
of sovereignty.

Is it a question of legislative power? Article 4 ["Legis-
lative Power"] embracing section 17 ^nd the following
sections confers this power on a Parliaiucnt composed of
the Queen, the Senate and the Commons. What a con-
trast when we come to the share of power granted to
each Province by article 5 "Provincial Constitutions —
Executive Power," The Queen disappears. Sect. 58 :
" For each Province there shall be an officer styled the
Lieutenant-Governor, appointed by the Governor-General
in Council by instrument under the Great Seal of Canada ."
This officer is not a deputy such as the Governor-General
can nominate in the circumstances provided for in section
14. He is merely an officer ; his council named by him is
composed of the following officers : the Attorney-General,
the Secretary and Registrar of the Province, the Trea-
surer, the Commissioner of Crown Lands, the Commis-
sioner of Agriculture and Public Works, and, in the Pro-
vince of Quebec, the Speaker of the Legislative Council
and the Solicitor-General. If wo pass on to the " Legis-
tive Power," we do not find there any more either the
Queen, or her representative or even a Parliament. Sect.
71 : "There shall be a Legislature for Quebec consisting
of the Lieutenant-Governor and of two Houses styled
the Legislative Council of Quebec, and the Legislative
Assembly of Quebec." Properly speaking this is nothing
uioie than a big municipality.

Is a bill passed in the Houses of Parliament ? — it is the
Governor-General who assents to it, or withholds assent
in the Queen's name, or reserves it for her personal assent
(Sects. .5', 50). Has a Provincial Legislature [>asbed a

1883

MoLSON

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864

QUEBEC SUPERIOR COURT.

law ? — the assent, the withholding assent and the reserva-
tion, are no longer in the name of the Queen, but of the
Governor- General and by the Lieutenant-Governor (Sect.
90).

The legislative powers are distributed sc .a to give the
general and undefined powers in very comprehensive
teruis to the Parliament of Canada ; on the other hand,
the powers left to the Provincial Legislatures are special
and in terms much less comprehensive (Sects. 91, 92).

Finally, when the Imperial Act deals with what is to be
doiie by the Lieutenant-Governor, the name of Her Ma-
jesty appears only twice — namely, for the original appoint-
ment of legislative councillors, and the tilling of vacancies
(sects. 72, 75), and the summoning of the Legislatures,
which the Lieutenant-Governor does in the name of Her
Majesty (sect. 82). It is said this must be by accident,
and this supposition is based on the fact that these
expressions are applicable only to the Provinces of Ontario
and Quebec. As regards the summoning of the Legis-
latures for Nova Scotia and New Brunswick, it is not so.

It follows, then, from all this, says the plaintiff, that
Her Majesty, not forming part of the Provincial Legis-
latures, and the Act not having conferred on the Lieuten-
ant-Governor the prerogatives of Her Majesty in express
terms, they remain undiminished in the person of Her
Majesty and cannot be exercised by the Lieutenant-Gov-
ernors ; the members of the Provincial Executive Council
cannot call themselves representatives of Her Majesty,
and as such, not under the jurisdiction of this Court.

The plaintiff admits that the defendant, Chapleau, took
[224] his first proceeding in expropriation in the name of
Her Majesty, but he asserts that this was done wrongfully,
and he rightly adds that it is not enough for a person to
call himself a i epresentative of Her Majesty to make
him so in reality.

y...

QUEBEC SUPERIOR COURT.

365

1883

Let us consider the first reason of the plaintift". The
<iefendants, Chapleau and Lynch, are not sued personally, moison
but as commissioners. Personally they have no interest chapLeai.
in the case. Their character of commissioners implies a ipj^j,"^,, j
principal in whose name they act. If this principal is
the Queen, she cannot be sued before this tribunal. If, on
the contrary, the principal is a private person, private
persons can only have judgment entered against them
in their own names, except in the cases expressly
provided by law. If they ai'c a corporation it can only be
a political corporation, for they form part of the executive
government ; they are the counsellors of Her Majesty,
and then they are governed by the general law and can-
not be brought before this tribunal, except in the cases
expressly provided by the law.

The second reason is that the Queen does not form part
of the executive government or of the Provincial Legis-
latures, from which** she has evidently withdrawn, look-
ing at the B. N. A. Act, 1867, as a whole ; that the Lieu
tenant-Governor does not represent her, but represents
the Governor-General, and the Ministers of the Lieuten-
ant-Governor are not representatives of the Queen.

It has been properly said that the Queen cannot sur-
render any of her prerogatives, except by a law and in
express terms. In like manner, and more properly, it may
he said that the Queen cannot cease to be the personitica-
tion of the sovereign authority in any part of the empire
without a law of the Imperial Parliament, or an agreement
in express terms to that effect. For, from the nionient
when it is no longer she who personifies the sovereign
authority in every Province of the empire, that Province
is no longer an integral part of that empire. Now, \f
the Queen has withdrawn, by the federal compact, both
from the legislature and the executive of the Piovinces,
and if the Lieutenant-Governors are not her representa-

lit;

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1883

MOI-SON

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Chai'm:au.

Paiiine.'iu, J.

306

QUEUEC SUPERIOR COURT.

j; I
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tives, and do not exercise iu her name and in her stead the
authority which they exercise, those Provinces are no
longer integral parts of the empire. The powers granted
to the Provincial Legislatures are granted to them to
the exclusion of the Federal Parliament. It is the same
with the executive power. A certain number of these
powers are rights of sovereignty, which can only be exer-
cised by the Sovereign, or by her representatives in her
name. Such are legislation over property and civil rights,
the administration of justice, the constitution of the
Courts, as well civil as criminal, etc. Either the Lieuten-
ant-Governors and legislators act in their own name (then
they are independent of Her Majesty), or they do so in
the name of Her Majesty, and then they are her repre-
sentatives.

If it is right to say that Her ^lajesty, in person, does
not form part of the Provincial Legislatures and the
Provincial Governments, it is equally right to say that
she forms part of them by representation. For she can-
not cease to form part of them, personally or by represen-
tation, without ceasing to be Sovereign of these Provinces.
The representatives of the Sovei-eign cannot be brought
before the Courts any more than she herself can, except
when and as she allows. It is not by inadvertence that
the law directs the Lieutenant-Governor to choose the
legislative councillors and to summon the assemblies in
the name of Her Majesty. This is in accordance with
the very nature of the English constitution, of which ours
are only copies.

But, says the plaintiff, I have been proceeded against
by the Hon. J. A. Chapleau ; the proceeding commenced
against me Is irregular ; I have the right to have it so
declared ; I summon in mj' turn those who have com-
menced proceedings against me, and under the same
names and descriptions ; I do nothing more than continue

QUEBEC SI PERIOR COURT.

367

the proceeding alread}- begun. This i.s true up to a certain
point ; but it must not be forgotten that, if the sovereign
authority has the right to act against private persons in
all the ways known for individuals amongst themselves,
these last cannot act against the sovereign authority
except in the manner permitted by it".

I use, intentionally, the words sovereign authority,
because the same principles prevail, and ought to prevail,
in all States, be they monarchical or democratic.

The plaintiff has maintained that Canada is not a
federation, but a union of Provinces into a single
Dominion witli large municipalities springing out of it.
The terms themselves of the preamble of the Act demon-
strate that, if there is a union, it is a federal union:
" Whereas, the Provinces of Canada, Nova Scotia and
New Brunswick, have expressed their desire to be
federally united," etc. Her Majesty and her Parliament
have passed the Act of 18G7 to carr}' out this desire.
The Provinces also have granted to the Dominion a large
pait of the powers which belonged to them at the
moment of union. But they have kept some powers
which belong to them, to the exclusion of the Dominion
which they have wished to form, and for which they have
expressed the desire to contract their union. The
Imperial Parliament onl}' acts to give effect to the con-
tract, the conditions of which were settled in the confer-
ences of the Provincial delegates. The Imperial Act is
only the solemn contract establishing the articles agreed
to by the Provinces in the conferences which preceded
the confederation. It ought then to Ije interpreted
without losing sight of this historical fact.

The exception is allowed with costs.

R. A. Raninay, for the plaintiff.

De BeUefeaUle cO Bonin, for the defendants.

1SS3

Moi.SON
V,

Chapleac.
P.apiiie.au, J,

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368

NOVA SCOTIA SUPREME COURT.

NOVA SCOTIA SUPREME COURT— EQUITY.
Murdoch v. Windsor & Annapolis Railway Co.

[Re2)orted Russell's Equity Reports, 137.*]
Bankruptcy cmd Insolvency — 57 Vict. c. IO4, N.S.

An Act of tlie Nova Scotia Legislature for facilitating arrangements
between Railway Compmies and their creditors, provided that
a company might propose a scheme of arrangement between
the company and its creditors and file the same in Court and
that thereafter the Court might, on application by the company,
restrain any action against the company on such terms as the
Court might think fit. The Act also provided that no >ce of
filing the scheme should be published, and that thereafter no
execution, attachment, or other process against the property of
the c mpany, should be available or be enforced without leave
of the Court :

Held, by Ritchie, J., that the above provisions related to bank-
ruptcj' and insolvency, and were in excess of the powers vested
in a Provincial Legislature (1).

The plaintiffs had security on the undertaking of the
defentlant company, future calls on shares and all tolls
and money arising from the undei'taking for £200,000 as
a firsE lien. Messrs. Roberts, Lubbock & Co., an English
firm, had a lien on the rolling stock for £25,000, smd
there were about £70,000 due to unsecured creditors.
The defendants, under chapter 104 of the Acts of 1874 of
the Legislature of Nova Scotia, entitled " An i^ct to facili-
tate arrangements between Railway Companies and their

•[This volume of Reports "is sup-
posed to contain all the decisions
delivered by Mr. Justice Ritchie, as
Judge in Equity for the Province of
Nova Scotia," during the years 1873-
1882. In the report of this case, the
date of the delivery of the judgment

is not given. The nearest preceding
case in which a date is given has the
date 1877, and that date has, there-
foi-e, been adoi)ted in the present
report.]

(1) [HeeiJe Windsor and Annapolis
Rail wail, post p. 387.]

Iiii.i

NOVA SCOTIA SUPREME COURT.

369

Creditors," filed a scheme whereby preferential stock to 1877
the extent of £75,000 was to be created, to be a first Murdoch
charge on both the undertaking, calls, tolls, etc., and the Windsor &
rolling stock, and this, or the money coming from it, was rai'lway Co.
to be applied to the payment in full of Messrs. Roberts, statement.
Lubbock & Co., and certain unsecured debts specified ;
stock to the extent of £350,000 was then to be created,
to be a subsequent charge on the undertaking, etc., and
rolling stock, and was to be issued at |)ar to the exist-
ing debenture holders in lieu of the debentures they then
lield, which were to be delivered up to be cancelled [138],
The plaintiffs obtained an order for the appointment of a
receiver, which the defendants obtained a rule n isi to
rescind.

Ritchie, Equity Judge: —

The plaintiff', on the 16th November last, obtained an
order iiiVi for the appointment of a receiver, which was
on the 28th December last, after argument, made abso-
lute, and on the 2nd February last William Twining was
appointed receiver to collect and receive the tolls and
sums of money arising from the Windsor & Annapolis
Railway Company, and to pay them over to the plaintiff*
till the amount due him by the company on the mort-
gage debentures, the subject of the suit, and his costs
should be fully paid, with leave to apply to the Court
for further directions, who, after having given the
required security, entered upon the duties of the oflSce.
On the 15th March last an application was made by
Mr. Henry on behalf of the company, to rescind the order
appointing Mr. Twining receiver, and to annul his
appointment, and he obtained a rule nisi to that efi^ect,
which was argued on the 29th March. The rule nisi
was obtained on the affidavit of Mr. Henry that a scheme
of arrangement between the company and their creditors

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370

NOVA SCOTIA SUPREME COURT.

i:lt ' '

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il'l

1877 had been filed in the Supreme Court at Halifax on the

AtimiKK'H 12th day of February last, notice of which had been

WiNilsou & *luly published under and in compliance with the pro-

IUi'kway'co. visions of an Act of the Province of Nova Scotia, entitled

Ritciiie J " ^^^ Act to facilitate arrangements between Railway

— Companies and their Creditors," (1) and it was further
stated that he (Mr. Henry) had been informed by the
secretary of the company in London, and fully believed,
chat the scheme had been assented to by three- fourths in
value of the creditors of the company.

In shewing cause it was contended on the part of [139]
the plaintitf'that the Legislature had exceeded its power
in passing the Act referred to, as it dealt with a .subject
over which the B. N, A. Act conferred on the Parliament
of Canada exclusive power of legislation, bankruptcy
and insolvency being among the enumerated classes of
subjects with which that Parliament alone can deal ; and
that this Act could be considered in no other light than
as an Insolvent Act. It was also contended that if the
Local Legislature had authority to pass the Act the
scheme proposed was so unreasonable in its provisions
that by merely filing it the plaintiff should not be
restrained from obtaining the benefit of the judgment he
had obtained and from his remedy fur the recovery of
the debt due him by the company. It was also urged
that the apjilication, if made at all, should have been
made sooner.

The following sections of the Act bear more particu-
larly on the question involved, viz., the 2nd, 3rd, 4th
and 5th : Sect. 2n(l, '' A company ma} propose a scheme
of arratigement between the company and their creditors
(with or without provisions for settling and defining any

(1) See page 1 of the Acts of 1875,
where this Act is placed as cap. 104
of the Acts of 1874, having been

reser>ed for the assent of the Gov-
ernor-General.

Int of the Gov-

NOVA SCOTIA SUPREME COURT.

371

rights of shareholders of the company as among them- 1877
selves, and for raising if necessary additional share and Murdoch
loan of capital or either of them), and may file the same Windsor &
in the court." Sect. 3rd, "After the filing of the scheme r1;^l''wI?co.
the Court may, on the application of the company on ^i^^jJIJ^ j

summons or motion, in a summary way, restrain any

action against the company on such terms as the Court
thinks fit." Sect. 4th, " Notice of filing of the scheme
shall be published in the Gazette and in two other news-
papers published in the City of Halifax." Sect. 5th,
"After such publication of notice no execution, attach-
ment, or other process against the property of the com-
pany shall be available or be enforced without leave of
the Court, to be obtained on summons or motion in a
summary way."

These provisions as well as the other provisions of the
Act have been tianscribed from sections of the Imperial
Statute, 30 &; 31 Vict. c. 127, but in transcribing the
second section of the Nova Scotia Act from the sixth of
the Imperial Act, with which in other respects it is
identical, these words at the commencement of the sec-
[140] tion are omitted : " Where a company ai'e unable to
meet their engagements," and at the close of it [sect. 6 of
the Imperial Act] the company is required to file a
declaration in writing that it is unable to meet its
engagements, with an aflidavit of the truth of such
declaration.

Had these words been transcribed into the Act in
question it would have appeared on the face of it that it
treated of a subject over which the Provincial Parliament
had no power of legislation, and it would doubtless have
been rejected as ultra vires. It is of little importance,
however, whether an Act does or does not profess in
terms to deal with insolvency ; the question is, does it in
fact deal with that subject ? If power is taken from

372

NOVA SCOTIA SUPREME COURT.

' 1

I.-

i«77 creditors to pursue their ordinary legal remedies for the

Ml'uimkh recovery of debts due them, whether by companies or firms

WiNijiiou & "^' individuals, or they are compelled without their consent

KKiLwl\^'cn. ^^ 8'^'^ ^''"® ^o their debtors, or to forego securities

J.. "TT , which tliey hold, and postpone a priority of lien which

— they possess to parties who may be willing to advance
money to their debtors to meet pressing necessities,
surely such legislation can only be predicated upon such
debtors being unable to meet their liabilities, or in other
words, being insolvent. That a company having become
insolvent, in order to settle with all its creditors alike,
should have the power of declaring itself such, and on
such declaration the remedies of creditors should be sus-
pended, is not unreasonable ; but that the Legislature
should give to a company solvent and able to meet all its
liabilities, the power of staying all proceedings against
their creditors by merely proposing and filing a scheme
of arrangement with them, would be incomprehensible.
The legislation must have been based upon the assump-
tion of the insolvency of the company ; the whole of the
provisions of the Act can lead to no other conclasion ; and
the company itself has so regarded it, for the scheme
which they have filed is preceded by this recital, " and
whereas the company are unable to meet their engage-
ments with their creditors."

But assiuning that validity is to be given to the Act^
yet, where an application is made to the Court to stay
the proceedings of creditors, reference must be had to the
terms of the scheme, for it could hardly have been con-
tended that the application must necessarily be successful
because a scheme, however unreasonable in its [141]
character, had been filed. In any such scheme the
various cla.sses of creditors must be fairly treated, and it
should shew a reasonable prospect of providing for the
ultimate payment of their claims.

\-\\

< ' t

NOVA SCOTIA SUPREME COURT.

378

[The learned Judge after considering the proposed
scheme, the object of which was in his opinion to secure Munmcn
as far as possible the other creditors of the company at win i won &
the expense of the present debenture holders, proceeded :] k\^,^wIy Co

Entertaining as I do a strong opinion that the Local ll^^^^, j
Legislature in passing the Act exceeded its powers, and "

that the scheme does not deal fairly with the present
debenture holders, I cannot comply with the application
which has been made on behalf of the company, and [142]
must discharge the rule nisi with costs ; but as both the
questions I have been considering will pro[)erly come
before the whole Court in term, when it is possible a
different view may be taken of them, T am disposed so
far to modify the order appointing the receiver, as to
direct him to pay the amount to be received by him to
the Receiver-General of the Court, there to abide the
further order of this Court if this course should be
desired on the part of the company.

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374

NOVA SCOTIA SUl'HEME COURT.

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ill

NOVA SCOTIA SUPREME C^OURT— KQUITY.
1881* In r.K The Wallace Huestis Grey Stone Co.

[Reported, RiisitelVa Equity Reports, 4^1*].

Bankruptcy and Insolvency — Windiiuj-up Act — Rev. Stat. N. S. {5th

series) c. SO.

By an Act oi tlio Legislature of Nova Scotia provision was made
for the winding-up of companies in general, where a resolution
to that effect was passed l)y the company, or where the Court
80 ordered at the instance of a contributor, on its being made
to appear that such order was just and equitable. The Act
could be enforced although no debts were due by the company,
but could not be called into operation by a creditor :

Held, that the Act did not partake of the character of an insolvent
law, and was within the legislative authority of a Provincial
Legislature.

Proceedings were taken under an Act of the Provincial
Legislature to wind up the company, on the ground that
it was heavly embarrassed, and could not extricate itself
' without having recourse to the double liability of the
shareholders. The Act of incorporation provided that
transfers of shares should be valid and effectual for all pur-
poses, from the time they were made and entered in the
books of the company.

Three of the shareholders claimed that they were not
contributories, on the ground that certificates of stock
were never accepted by them, but it appeared that the

•[This volume of Reports "is
supposed to contain all the decisions
delivered by Mr. Justice Ritchie as
Judge in Equity for the Province of
Nova Scotia," during the years 1873-
1882. In the report of this case the

date of the delivery of the judgment
is not given. The nearest preceding
case, in which a date is given, has
the date 1881, and that date has
therefore been adopted in the pre-
sent report.]

Nova 8C0TIA SUl'HKMK ColMtT.

37;

certificates were issiiec* them by direction of the fdnner 1*^1
stoelchoMera, from wliom they were transCerrcd, that this InRkThk

jved of by the di

and th

Wall.

UKSTiaCiBKT

Stonk Co.

iertiHcates
were handed to the transferor and afterwards received
by two of the transfereers, wiio were rci^dsu'red as "'"'^"'"''^
stockliolders in the company's books, and never repudi-
ated the transaction. The third transferee was also
registered, and was elected a din'ctor previous to his
reitudiating the transaction, wliich ho did not do imtil
after it became apparent that the affairs of the conii)any
wee embarrassed. Another class of stocklioldei's clnini'Ml
f(^ ' e exempt, on the ground that they liad surrentUiit'il
their sliii res to tlie company. This surrender l.isd be'iii
niaile and accepted by the conijiany, but the parties sui-
ix'iidering knew that the afi'airs of the company were
euibairassed, and it was with a view of escaping liabihty
that the surrender was made (1).

''I

: M

RiTcM IK, Equity Judge: —

Tlie application for the winding up of this company, is
made on behalf of shareholders, on the ground that it has
incurred heavy responsibilities, and that it is impossible
to extricate itself from its present embarrassment and
meet its liabilities, without having recourse on its mem-
bers, under the double liability clause of the Act under
wliich it is incorporated, and that any attempt to con-
tinue its business would result in further loss.

The oidy objections to the proceedings, w^hich have been
taken, are made by certain persons who den^ their liabil-
ity as contributories; who also insist that, though they
shouU be held to be liable, the proceedings are invalid,
inasmuch as the Act of the Provincial Legislature, under
which they are taken, is unconstitutional and ultra vires,

(1) [The statement is taken from the head note to the case as reported.]

hi;

1 .•

; )

I • -
i

37G

NOVA SCtJTiA SUPKEMK COURT.

1881 as dealing with insolvency, a suVject over which the

In Rk Thk Dominion Legislature has alone the power of legislating.

HuIstIsGrkt [462] As this last objection lies at the root of the

Stone Co. matter, I shall consider it first. The Act does not in

Ritchie, J. terms profess to deal witli insolvency, nor is it in its

character an insolvent law. The object of such a law is

to relieve honest debtors who are unable to pay their

debts, and to make a fair distribution of their property

among their creditors in discharge of their debts.

The object of this Act is to wind up the affairs of com-
panies in general, where a resolution to that effect has
been passed by the company, or where the Court may so
order it, as in the present case, on the application of a
contributor, on its being made to appear that it is just and
equitable that it should be done. This may take place
though no debts whatever may be due by the company;
and this Act, unlike the English Act on the same subject,
cannot be called into operation by a creditor of the com-
pany. Under the Act incorporating tliis company, its
members are ma<le liable for double the amount of stock
held by them. No more than the subscribed stock has
been paid up, and there is nothing to lead to the infer-
ence that the amounts for which the members are still
liable will not be sufficient to pay all its indebtedness,
rt is with the view of having these amounts collected and
so applied, and thus avoiding insolvemiy, that these pro-
ceedings have been taken. I think, therefore, that the
Act under which they have been taken does not trench
upon the legislative powers of the Dominion Parliament >
so that those who rely on this ground alone, must be held
to be contributories.

[The remainder of the judgment is omitted, the same
not having reference to the constitutional question.]

NOVA SCOTIA SUPREME COURT.

377

r whicli the

NOVA SCOTIA SUPREME COURT.

Town of Windsor v. The Commercial Bank of

Windsor.

\Repo-ied 3 Russell and Geldert 4^0.]

Taxation of Banks — B. N. A, Aci, s. 91, sub-s. 15.

A Local Legislature has authority to enact a law imposing a tax
on the Dominion notes held by a bank as a portion of its cash
reserve under the Dominion Act relating to " Banks and
Banking" (34 Vict. c. 5, s. 14).

This was a case stated for the opinion of the Court in
the follow:ng terms : —

The parties hereto agree to submit the following case
without pleadings to the Supreme Court at Halifax, for
their decision thereon, and agree to be bound by the
decision given herein, by the said Supreme Court.

[4<21] The defendant Bank is doing business under the
general Banking Act of the Dominion of Canada, and has
its office, and does business in the Town of Windsor.

The bank, in addition to real and other personal pro-
perty held and owned by it, owns and holds notes of the
Dominion of Canada to the amount of eleven thousand
seven hundred and fifty-nine dollars, which notes are held
as a portion of its cash reserve, as required by the Act
relating to Banks and Banking.

The assessors for the Town of Windsor have assessed
the said bank the sum of twelve hundred and fifty
dollars on real estata, fifteen hundred dollars on office
furniture and safes, eighteen thousand two hundred and

1882*
Dec. IS.

'hi 9

•rJtiti s

■iHi

-m

'Present:— McDonald, Smith, James and Weathkrbk, J J.

878

NOVA SCOTIA SUPREME COURT.

IS82

Town- ok

WiNnsoK

♦

forty-one dollars on specie held by the said bank, and,

also, eleven thousand seven hundred and fifty-nine dollars

on said Dominion of Canada notes, being the amount of

^" B^nk''^'^' ^^^'^ notes so held by said bank, and the said bank has

oi- Wmisou. ]jQQji rated the sum of three hundred and twenty-seven

Statemknt. dollars and fifty cents for taxes thereon.

The bank is willing to pay the taxes rated and assessed
on it in respect of real estate, office furniture, and safes
and specie held by it, viz. : the sum of two hundred and
nine dollars and ninety-one cents, but refuses to pay the
tax rated and assessed on said Dominion of Canada notes,
viz. : the sura of one hundred and seventeen dollars and
fifty-nine cents.

The question for the opinion of the Court is, whether or
not the said bank is liable to be so assessed for taxes on
the Dominion of Canada notes so held by the said bank.

If the Court decide that the bank is liable to be assessed
on said Dominion of Canada notes, judgment to be
entered against the defendant for the plaintiff for the sum
of one hundred and seventeen dollars and fifty-nine cents,
and costs, otherwise judgment to be entered for the defen-
dant against the plaintiflf for costs.

It is further agreed that this case shall not stay or
^ interfere with the collection of rates and taxes asse.ssed
and levied on other property held by the said bank, and
the payment by the said bank of any tv\m or sums of
money on account of its taxes shall not aflfect or prejudice
this case.

[422] The printed by-laws of the Town of Windsor
may be referred to as if forming part of this case.

E. W. DiMOCK,

Warden,
W. M. Christie, Atty.for Town of Windsor.
Walter Lawson, Cashier, Com. Bank of Windsor.
ArnREY Blanchard, Atfy. of Com. Bank of Windsor.

NOVA SCOTIA SUPREME COURT,

• 379

The case was argued December 19th, 1881, by Grdhim,
Q. C, on behalf of the Town of Windsor, and Rlghy, Q. C,
on behalf of the Commercial Bank.

1882

Town of
Windsor

cojimkkciai.
Bank

OF WlNDSOK.

Graham, Q. C.

Under the B. N. A. Act, Dominion notes in the hands Statemknt
of parties may be assessed. The first Act in reference to
Dominion notes is the Act of 1868, page 40 ; the next is
the Act of 1870, page 40; and the last, the Act of 1880,
diopter 13. There are some other Acts, which are not
i^ijiterial. The Banking Act is contained in Acts of 1871,
cap. 5, sects. 11, 14. Under sect. 125 of the B. N. A. Act,
no lands oi property belonging to the Dominion can be
taxed. It cannot be said that these notes which the
Dominion Government have exchanged for gold and other
[423] things belong to the Dominion Government : Bank
V. Supervisors (1). In this case United States notes were
held exempt from taxation, but this was under a special
Act to that effect, and it may be inferred from the case,